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Hart Publishing - Bloomsbury Academic
Voting Misconceptions
In 1949 the Chifley Government amended the Commonwealth Electoral Act 1918 (Cth) to re-enfranchise those Aboriginal people who could vote in their state elections and those who had served in the armed services. These amendments continued to exclude Aboriginal people living in Western Australia, Northern Territory and Queensland which banned Aboriginal people from voting.
Commonwealth Electoral Act 1962 (Cth) enabled Aboriginal Australians to be entered on the electoral roll from 1962 onwards.
However it did not become compulsory, as it was for all other Australians, until 1983 when the Electoral Legislation Amendment Act 1983 (Cth) was passed.
Following the passing of the Commonwealth Electoral Act 1962 (Cth) Western Australia and the Northern Territory agreed to give Aboriginal residents the right to vote. Queensland delayed allowing this right to Aboriginal and Torres Strait Islanders until 1965. So it was not until 1965 that Indigenous Australians had the right to vote in all state and Commonwealth elections.
Aboriginal and Torres Strait Islander Australians were not required to enrol to vote until 1984: see Electoral Legislation Amendment Act 1983 (Cth).
1967 Australian Referendum
Clauses of the 1901 Constitution affecting and Aboriginal and Torres Strait Islanders
Australian Constitution sections 25, 51(xxvi) and 127
For more background information and discussion of the significance of the referendum see
Bain Attwood and Andrew Markus, 1967 Referendum: Race, Power and the Australian Constitution (Canberra, Aboriginal Studies Press, 2007).
Repressive administration of Aboriginal affairs by the states: colonial era legislation
The only state which did not have special legislation controlling Aboriginal people was Tasmania which by the 1960s claimed that Aboriginal people there had died out. All the mainland colonies had introduced Protection Boards and protection legislation starting with Victoria in 1869. You can read about its legislation here:
https://www.foundingdocs.gov.au/item-sdid-22.html
This nineteenth century legislation was amended and repealed by the 1950s but all the states and territories maintained restrictions that affected Aboriginal people’s daily lives. The most oppressive were Queensland, Northern Territory and Western Australia. These laws will be discussed again when the chapter considers the Stolen Generations and Stolen Wages issues.
For historical discussion of the effects of these laws on work, wages, family life, religious practices, freedom of movement, right to property and marriage among many others see Richard Broome, Aboriginal Australians, 122-48; 172-194. See especially the summary of historical debates about whether exploitative conditions in the cattle industry constituted slavery 139-41.
For a list of the legislation by state and territory see, Australian Institute for Aboriginal and Torres Strait Islander Studies> Collections> To Remove and Protect:
https://aiatsis.gov.au/collection/featured-collections/remove-and-protect
‘Doomed Race’ Theory
This pseudo-scientific belief gained wide acceptance throughout western Europe, North America, Australia and New Zealand in the late nineteenth century.
Richard Broome gives a good summary:
Richard Broome, Aboriginal Australians: A history since 1788, 5th ed (Crows Nest NSW, Allen & Unwin, 2019) 106-08.
For more detail see
Henry Reynolds, Nowhere People: How international race thinking shaped Australia’s identity (Camberwell Vic, Penguin, 2008)
And
Russell McGregor, Imagined destinies: Aboriginal Australians and the doomed race theory, 1880-1939 (Carlton Vic, MUP, 1997)
Referendum results by state
Source: Scott Bennett’ The 1967 Aborigines Referendum’, Australian Bureau of Statistics, available at https://www.abs.gov.au/AUSSTATS/abs@.nsf/Previousproducts/1301.0Feature%20Article12004.
The radical Aboriginal movement
The late 1960s and 1970s were a time of radicalism for young people everywhere. Myriad causes enlivened the evening news from the assassination of civil rights leader Martin Luther King in the United States, the war in Vietnam, apartheid in South Africa and native American protests in Canada. Young Aboriginal activists were no longer satisfied with talk of equal rights and began to assert new demands. They rejected the notion that they should be like white people and argued that white Australians must recognise and respect Aboriginal culture and Aboriginal difference. White people making decisions for them was insufferable; they wanted self-determination and land rights as the basis of their cultural continuity, economic independence and physical and spiritual health. There were objections in Australia to the bicentenary celebrations of Cook’s “discovery” of Australia in 1970, and huge protests in 1971 when an all-white Springboks rugby union team from apartheid-era South Africa toured the country. By 1972 Aboriginal activists had established the Aboriginal Tent Embassy in front of Old Parliament House as a symbol of their status as refugees in their own land.
If you would like to learn more about the interplay of legal cases and Aboriginal politics in these years Richard Broome provides a general overview in Richard Broome, Aboriginal Australians, 257-254.
Bain Attwood and Andrew Markus provide useful original documents from Aboriginal organisations and legal cases as well as a helpful overview in The Struggle for
Aboriginal Rights: A Documentary History (Crows Nest NSW, Allen & Unwin, 1999) 170-275.
Charlie Ward gives a lively account of the interplay of national politics and the Gurindji’s struggle at Wave Hill, A Handful of Sand: The Gurindji Struggle, After the Walk-Off (Clayton Vic, Monash University Publishing, 2016) 98-117.
Larry Writer offers a recent account of the tumultuous politics of the Springbok tour in Pitched Battle: In the frontline of the 1971 Springbok tour of Australia (Brunswick Vic, Scribe, 2016).
Historical Cameo: Faith Bandler AO
Human Rights Medal by the Human Rights and Equal Opportunity Commission [HREOC]
The HREOC was established in 1986 and re-named the Human Rights Commission [HRC] in 2008. The Human Rights Medal now is awarded annually by the HRC.
Sources on Faith Bandler
Marilyn Lake, Faith: Faith Bandler, Gentle Activist (Allen and Unwin, Sydney, 2002).
Marilyn Lake, ‘Bandler, Faith, Aboriginal Rights Activist’, The Encyclopedia of Women and Leadership in Twentieth-Century Australia, Australian Women's Archives Project, 2014 https://www.womenaustralia.info/leaders/biogs/WLE0231b.htm
Clive R. Moore, 'Bandler, Ida Lessing Faith (1918–2015)', Pacific Islander Biography, National Centre of Biography, Australian National University, pib.anu.edu.au/biography/bandler-ida-lessing-faith-15982/text27227
Heather Goodall, 'Gibbs, Pearl Mary (Gambanyi) (1901–1983)', Australian Dictionary of Biography, adb.anu.edu.au/biography/gibbs-pearl-mary-gambanyi-12533/text22555
Heather Radi, 'Street, Lady Jessie Mary (1889–1970)', Australian Dictionary of Biography, adb.anu.edu.au/biography/street-lady-jessie-mary-11789/text21089.
Tony Stephens, 'Bandler, Ida Lessing Faith (1918–2015)', People Australia, National Centre of Biography, Australian National University, http://peopleaustralia.anu.edu.au/biography/bandler-ida-lessing-faith-15982/text27990
Milirrpum v Nabalco Pty Ltd (‘the Gove Land Rights case’) (1971) 17 FLR 141
Milirrpum v Nabalco Pty Ltd (‘the Gove Land Rights case’) (1971) 17 FLR 141
Milirrpum and the famous bark petition
Five years before the Gove Land Rights Case had begun, Milirrpum gave evidence to a Parliamentary Select Committee into the Grievances of the Yirrkala. You can read his transcript of evidence in Attwood and Markus, 204-06.
The National Museum of Australia has further context, beginning with the famous bark petition to the Commonwealth parliament from the Yirrkala, the commencement of the legal case in December 1968, and photos of participants at:
https://www.nma.gov.au/explore/features/indigenous-rights/land-rights/yirrkala
Copies of the bark petitions are included on the Museum of Australian Democracy website which notes their significance:
Petitions to Parliament must conform to certain rules of procedure and the acceptance of these petitions marks a bridge between two traditions of law. There had been many earlier petitions from Aboriginal people to Australian parliaments, and attempts to present petitions to the Crown. These petitions are the first to use traditional forms and combine bark painting with text typed on paper.
Go to:
https://www.foundingdocs.gov.au/item-did-104.html
Whitlam Government
Chapter 11 noted that after 23 years of Liberal administrations dominated by the politics of the cold war, there was a mood for reform around the country when Gough Whitlam was elected on 2 December 1972. Nowhere was this clearer than in Aboriginal policy. Whitlam finally acted on the 1967 referendum and established Aboriginal Affairs as its own department at the federal level. His government also ended the Commonwealth’s regulation of the departure of Aboriginal and Torres Strait Islander people from Australia, which had required Aboriginal people to request special permission to leave, under the immigration power. (Some of the states had also banned the movement of Aboriginal people across state borders under the various Aboriginal acts.)
In 1966 Aboriginal stock workers had gone on strike over an Arbitration Court ruling that deferred their right to equal wages for three years and walked off Wave Hill Station. This was the famous Gurindji protest led by Vincent Lingiari and immortalised in song by Kev Carmody and Paul Kelly. The strike won them national coverage and they soon transformed their action into a demand for the right to their ancestral lands. Prior to his election Whitlam had written to Vincent Lingiari and the Gurindji promising that he would give them their land back. This commitment was stalled by numerous bureaucratic hurdles and Whitlam’s appointment of the Royal Commission into Aboriginal Land Rights which ran from 1973 to 1974. Whitlam appointed Justice Edward Woodward to chair the royal commission; Woodward was the QC who had argued Milirrpum and others’ case for rights to their land in Milirrpum v Nabalco Pty Ltd (‘the Gove Land Rights case’) (1971) 17 FLR 141. Finally on 16 August 1975 PM Whitlam handed over a pastoral lease to Vincent Lingiari and Gurindji for their traditional lands.
Other achievements in Aboriginal Affairs included the establishment of the Aboriginal Land Fund in 1974 to purchase land for Aboriginal claimants and the Racial Discrimination Act.
For detailed discussion on implementation confusion and failures of federal Aboriginal policy during the Whitlam years, with a focus on Wave Hill, see
Charlie Ward, A Handful of Sand: The Gurindji Struggle, After the Walk-Off (Clayton Vic, Monash University Publishing, 2016)
For an overview of the Whitlam Government’s policy intent and achievements in Aboriginal affairs see
Jenny Hocking, ‘”A transforming sentiment in this country”: The Whitlam Government and Indigenous Self-Determination’ (2018) 77 1 Australian Journal of Public Administration 5-12
Land Rights during the years of the Fraser Government
The conflicts between Aboriginal people and the mining and pastoral industries did not abate with the defeat of the Whitlam Government. Although the Fraser Government’s land rights legislation was favourable to the mining industry, Malcolm Fraser was personally opposed to racism and in favour of Aboriginal rights. In 1976 two traditional owner groups purchased, partly with Aboriginal Land Commission Funds, Noonkanbah Station in the Kimberley region, only to discover that the Western Australian government had issued hundreds of mining leases and oil exploration permits over their land. A local magistrate dismissed Aboriginal concerns about destruction of their sacred sites as irrelevant to white man’s law, forcing the local people to lock the station gates and try to negotiate with the mining companies. Premier Charles Court was determined to give the mining companies full access rights and a convoy of drilling rigs accompanied by 25 police arrived on the station to confront a peaceful sit-down of Aboriginal people and their supporters. Police cleared the convoy’s passage but national sympathy for the land rights cause grew in response to the publicity. Despite drilling into sacred ground, no oil was ever found. The defence of sacred sites brought Aboriginal people from many communities together to form the Kimberley Land Council in 1979 which remains one of the conflict’s legacies.
Dave Ritter argues this struggle was a turning point of national significance in ‘The fulcrum of Noonkanbah’ (2009) 26 75 Journal of Australian Studies 51-58.
See also Steve Hawke & Michael Gallagher, Noonkanbah: Whose land, whose law (Fremantle, Fremantle Arts Centre Press, 1989).
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Pitjantjatjara Land Rights Act 1981 (SA)
Aboriginal Land Rights Act 1983 (NSW)
Outstanding claims
In 2012 a submission of the New South Wales Aboriginal Land Councils to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs provided a comparison of successful claims under native title and under the Aboriginal Land Rights Act 1983 (NSW). Almost thirty years after the passing of NSW land rights legislation 2 473 land claims had been granted, but 26 000 were yet to be determined.
Submission of the New South Wales Aboriginal Land Councils, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Report 2013.
Racial Discrimination Act 1975 (Cth)
Section 8(1) notes that Part II ‘does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies’.
Under s 9(1) of the RDA, it is unlawful for a person to ‘do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life’. Sub-section 2 states: ‘A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination
Section 10(1) provides: ‘If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.’ Sub-section 2 defines ‘[a] reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.’
Section 109 of the Australian Constitution
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
The Queensland Government was led by Premier Joh Bjelke-Petersen for nineteen years from 1968-1987. Some of his controversial interventions in national politics were covered in Ch 11. In this chapter we look at two of his most controversial intercessions in Aboriginal land matters.
For more on John Koowarta and the origins of the law scholarship named after him, see http://adb.anu.edu.au/biography/koowarta-john-pampeya-14856
Darryl Bennet and Colin Sheehan, 'Koowarta, John Pampeya (1940–1991)', Australian Dictionary of Biography, adb.anu.edu.au/biography/koowarta-john-pampeya-14856/text26041, published online 2016.
Mabo v Queensland [No 1] (1988) 166 CLR 186
Queensland Coast Islands Act 1879 (Qld)
Much has been written on the Mabo decision. For an overview and discussion of its national political effects see Richard Broome, Aboriginal Australians, pp 283-291.
Bryan Keon-Cohen was legal counsel for Eddie Mabo et al and he has written his account of events in and outside the court room.
Bryan Keon-Cohen, A Mabo Memoir: islan kustom to Native Title (Malvern Vic, Zemvic, 2013).
For the legal implications of the trial and of the Native Title Act 1993 (Cth) see
Bryan Keon-Cohen (ed) Native Title in the New Milennium (Canberra, Aboriginal Studies Press, 2001).
Queensland Government Defence in Mabo [1]
After the 1985 Act became law, the State of Queensland amended its defence, using the Queensland Coast Islands Declaratory Act 1985 (Qld) to answer allegations in the plaintiffs’ statement of claim. These amendments included the following:
4a. The Murray Islands are islands to which the Queensland Coast Islands Declaratory Act 1985 applies.
9a. In further answer to paragraphs 4 and 5 of the Statement of Claim, by Section 3 of the Queensland Coast Islands Declaratory Act 1985 the islands the subject of that Act are deemed to have been vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever upon the islands being annexed to and becoming part of Queensland.
17a. In further answer to paragraphs 12, 13, 14 and 15 of the Statement of Claim, the First Defendant pleads and relies upon the provisions of Section 3 of the Queensland Coast Islands Declaratory Act 1985.”
Article 5(d)(v) of the International Convention on the Elimination of All Forms of Racial Discrimination
https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx
High Court Judgment in Mabo [1] Mabo v Queensland [No 1] (1988) 166 CLR 186
The Queensland Coast Islands Declaratory Act 1985 (Qld) was constitutionally invalid. Here is a longer excerpt from the decision by Justices Brennan, Toohey and Gaudron:
By extinguishing the traditional legal rights characteristically vested in the Miriam people, the 1985 Act abrogated the immunity of the Miriam people from arbitrary deprivation of their legal rights in and over the Murray Islands. The Act thus impaired their human rights while leaving unimpaired the corresponding human rights of those whose rights in and over the Murray Islands did not take their origin from the laws and customs of the Miriam people. If we accord to the traditional rights of the Miriam people the status of recognized legal rights under Queensland law (as we must in conformity with the assumption earlier made), the 1985 Act has the effect of precluding the Miriam people from enjoying some, if not all, of their legal rights in and over the Murray Islands while leaving all other persons unaffected in the enjoyment of their legal rights in and over the Murray Islands. Accordingly, the Miriam people enjoy their human right of the ownership and inheritance of property to a “more limited” extent than others who enjoy the same human right.
In practical terms, this means that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a State law which seeks to extinguish it now will fail. It will fail because s 10(1) of the Racial Discrimination Act clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s 10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community. The attempt by the 1985 Act to extinguish the traditional legal rights of the Miriam people therefore fails.
https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx
Mabo v Queensland [No 2] (1992) 175 CLR 1
Chief Justice Brennan’s judgment in Mabo[2] is very long but well worth reading. He draws on many of the themes of this book including land law in feudal times, international law as it developed among imperial powers, Blackstone’s Commentaries, Cooper v Stuart (1889), Justice Isaacs and of course Milipirrum v Nabalco Pty Ltd (1971). You can read it here:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/23.html
Love v Commonwealth and Thoms v Commonwealth
In 2020 the High Court’s rejection of terra nullius in Mabo (2) was revisited by the court in Love v Commonwealth and Thoms v Commonwealth and again terra nullius was rejected by a majority of judges. Love and Thoms were born overseas but the sons of Indigenous Australians. The Morrison Government sought their deportation, claiming they were aliens, a position rejected by the High Court 4:3. The judges had to interpret the constitutional meaning of ‘alien’ in 1901 and again in the light of the Native Title Act 1993 (Cth).
For further consideration of the significance of these judgments see Daniel Lavery, ‘Judicial Distancing in the High Court: Love/Thoms v Commonwealth’ (2020) 11 JCU Law Review 159
Historical Cameo: Eddie Mabo
The title of Director of Aboriginal and Island Affairs was created in 1965 and continued in subsequent acts. See Torres Strait Islander Act (Qld) 1971
https://aiatsis.gov.au/collection/featured-collections/remove-and-protect
Margaret Reynolds was an early childhood teacher who later became a senator for Queensland (1983-1999).
Her husband Henry Reynolds took up a history lecturer position at James Cook University in 1966.
Rodney Sullivan ‘Reynolds, Margaret (1941-)’ in Biographical Dictionary of the Australian Senate Online Edition, <https://biography.senate.gov.au/reynolds-margaret/>
Conference on land rights
The title of the conference was ‘Land Rights and the Future of Australian Race Relations Conference’. Speakers included H.C. Coombs, Barbara Hocking, Garth Nettheim, Greg McIntyre, anthropologist Nonie Sharp, as well as historians Henry Reynolds and Noel Loos. See the description of the conference on the James Cook University library website, https://libguides.jcu.edu.au/mabo-timeline/1980s
Coombs was a former governor of the Commonwealth and then the Reserve Bank who advocated for a treaty with Indigenous Australia. Barbara Hocking was a barrister who established the legal framework for the Mabo case while Greg McIntyre, then a lawyer at the Cairns Aboriginal Legal Service, recruited barristers Ron Castan & Bryan Keon-Cohen for the case.
Posthumous acknowledgements
Filmmaker Rachel Perkins has made a movie about Eddie Mabo which screened on the ABC in 2012.
The Australian Institute for Aboriginal and Torres Strait Islander Studies hosts the annual Mabo Lecture.
The Canberra suburb of Bonner, named after the country’s first Aboriginal senator, includes Mabo Boulevarde.
Sources on Eddie Mabo
Noel Loos & Eddie Koiki Mabo, Eddie Koiki Mabo: His life and struggle for land rights (St Lucia, University of Queensland Press, 2013)
‘Eddie Koiki Mabo’, AIATSIS, aiatsis.gov.au/explore/eddie-koiki-mabo
Noel Loos, 'Mabo, Edward Koiki (Eddie) (1936–1992)', Australian Dictionary of Biography, ia.anu.edu.au/biography/mabo-edward-koiki-eddie-16122/text28064
Keon-Cohen, Bryan. Mabo in the Courts: Islander Tradition to Native Title: A Memoir. 2 vols. (North Melbourne, Australian Scholarly Publishing, 2011)
Native Title Act 1993 (Cth)
http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/nta1993147/
Redfern Speech December 1992
You can read Paul Keating’s Redfern Speech here:
https://antar.org.au/sites/default/files/paul_keating_speech_transcript.pdf
States and Territories native title legislation
Native Title Act 1994 (ACT)
https://www.legislation.act.gov.au/a/1994-71/
Native Title (New South Wales) Act 1994 No 45
https://www.legislation.nsw.gov.au/view/whole/html/inforce/current/act-1994-045
Validation (Native Title) (Northern Territory) Act 1994
https://legislation.nt.gov.au/en/Legislation/VALIDATION-NATIVE-TITLE-ACT-1994
Native Title (Queensland) Act 1993
https://www.legislation.qld.gov.au/view/html/inforce/current/act-1993-085#
Native Title (Tasmania) Act 1994
https://www.legislation.tas.gov.au/view/html/inforce/2012-07-01/act-1994-081#GS1@EN
Victoria
Land claims in Victoria have been made under the Commonwealth legislation but in 2010 Victoria passed the Traditional Owner Settlement Act 2010 as an alternative process.
Traditional Owner Settlement Act 2010
http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/tosa2010326/
Western Australia
WA passed the Land (Titles and Traditional Usage) Act 1993 but in March 1995 the High Court declared it inoperative. See
Western Australia v Commonwealth [1995] HCA 47; (1995) EOC 92-687 (extracts); (1995) 69 ALJR 309; (1995) 183 CLR 373 (16 March 1995)
Western Australia then passed the Titles Validation Act 1995 (WA) in order to validate past acts of the state under s 19 of the Native Title Act 1993 (Cth). On 10 January 2000 parts of WA’s Native Title (State Provisions) Act 1999 was proclaimed.
http://classic.austlii.edu.au/au/legis/wa/consol_act/ntpa1999353/
However in November the Commonwealth Senate voted to disallow the Act. Its most important provisions had never been proclaimed.
Western Australia’s High Court Challenge
Western Australia v Commonwealth (1995) 183 CLR 373
Native Title Act 1993 (Cth) Section 3 Objects
https://www.legislation.gov.au/Details/C2019C00054
Pause for Thought
House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Report, March 2013
Native Title Amendment Act 1998 (Cth)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1996/40.html
In the lead up to the passing of the Act, Aboriginal leaders fought a long hard campaign resisting this huge loss of native title. PM Howard was intransigent even refusing an offer to mediate by President of South Africa, Nelson Mandela.
The only hopeful aspect for Indigenous Australians was that some pastoral leaseholders resisted the emotive anti-Wik campaign and began negotiations with native title claimants over access to their lands, irrespective of the federal legislation.
Broome gives a useful summary of the political events, including Nelson Mandela’s thwarted role.
Broome, Aboriginal Australians 296-302.
‘Protection’: Understanding the legal foundations of the Stolen Generations and of Stolen Wages
‘protection’ Under these Acts ‘protectors’ were government officials with bureaucratic control over Aboriginal people who were deemed to fall under these acts. As the twentieth century progressed these positions were re-designated superintendent or manager; in some states missionaries were also given this authority. In Queensland local sergeants of police could also be delegated authority as protectors.
Part of the motivation behind the various protection boards and legislation in each colony was humanitarian concern about the plight of Aboriginal communities devastated by frontier violence, disease and slave-like work practices of brutal employers. The Queensland Native Police, discussed in chapter 9, was still operating in north Queensland when in 1894 Queensland initiated an inquiry into the treatment of Aboriginal people. It uncovered brutal treatment and slave-like conditions on cattle stations. It led to that colony’s first protection act in 1897. Many legislators, caught up in social Darwinist thinking, also believed that Aboriginal people were dying out and that the best way forward was to house and protect them from unscrupulous exploitation in their last days. This was the rationale for strict controls over the training and hiring of Aboriginal men for the cattle industry and Aboriginal women for domestic service. For the thinking behind the legislation see:
Broome, Aboriginal Australians 106-08; 117-21.
In spite of the humanitarian language, the effect of these statutes was to destroy Aboriginal connections to country, prohibit the speaking of Indigenous languages on the reserves and many church missions, undermine the authority of traditional elders, obliterate the political and kinship systems of First Nations and in so doing attempt to annihilate Aboriginal identity. By the 1930s, as some administrators began to acknowledge that Aboriginal people were not dying out, the official policy became ‘absorption’, an early term for assimilation through intermarriage. Officials hoped that they could create a white Australia by breeding out Aboriginality. This is the context for the systematic removal of Aboriginal children which continuously fractured Aboriginal families over many decades.
For an introduction to absorption policy and its effects see Broome, Aboriginal Australians 96-99; 197-200.
During this period, the day-to-day lives of Aboriginal people and Torres Strait Islanders were, in one way or another, controlled. In Queensland and the Northern Territory marriages of Aboriginal people required written permission from white officials. Though entitled to write a will, Aboriginal people were required to have the will approved and witnessed by the Chief Protector or someone authorised by the Chief Protector. The Chief Protector also administered the estates of deceased or missing Aboriginal people.
For a list of the legislation by state and territory see, Australian Institute for Aboriginal and Torres Strait Islander Studies> Collections> To Remove and Protect:
https://aiatsis.gov.au/collection/featured-collections/remove-and-protect
Stolen Generations
Under removal policies some children were adopted or fostered by white parents but many others were placed in state run establishments or missions. In these closed institutions girls were trained to become domestic servants and boys for station work. When they reached the age of fourteen they were sent out under indentures to work for white employers. The indenture system was covered in chapter 7 (the convict system) and in the discussion of the Pacific Island labour trade in chapter 9. Some Aboriginal workers found themselves still under restrictive work contracts until the 1960s.
Aborigines Protection Amending Act 1915 (NSW)
http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/num_act/apaa1915n2321/
Here again is the link to AIATSIS’s full list of state and territory legislation which covered the removal of Aboriginal children:
https://aiatsis.gov.au/collection/featured-collections/remove-and-protect
In 1995, as a result of Aboriginal activism around the issue, the government of Paul Keating set up a royal commission to inquire into the practice of child removal. The national inquiry chaired by Sir Ronald Wilson handed down its final report in May 1997, after the 1996 federal elections.
You can read the report in full here:
Bringing them home: Report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families (Sydney, Human Rights and Equal Opportunity Commission, 1997)
https://humanrights.gov.au/our-work/bringing-them-home-report-1997
Refusal to apologise leads to state apologies
Although the Howard Government tabled the report, Prime Minister Howard refused to offer an apology to Aboriginal people despite the detailed evidence of the heartbreak and painful sundering of Aboriginal family life across the country. Instead, between May 1997 and 2001 it fell to state and territory governments to offer official apologies; you can read the Australian Human Rights Commission analysis of them here:
https://humanrights.gov.au/our-work/bringing-them-home-apologies-state-and-territory-parliaments-2008
Official apology by the Commonwealth
Prime Minister Kevin Rudd finally gave an official apology on behalf of the Commonwealth on 13 February 2008. Many Aboriginal witnesses wept over the short but moving address which has been preserved on the Australian government website. You can watch the video, hear the audio recording or read the transcript here:
As well as the detailed evidence provided to the Inquiry, many Aboriginal people have published their personal stories of the suffering endured as a result of childhood removal. Among the more influential are:
Margaret Tucker, If everyone cared: Autobiography of Margaret Tucker (Sydney, Ure Smith, 1977).
Sally Morgan, My Place (Fremantle WA, Fremantle Arts Centre Press, 1987).
Doris Pilkington Garimara, Follow the Rabbit-Proof Fence (St Lucia Qld, University of Queensland Press, 2001).
The National Library of Australia also conducted an oral history project ‘to collect and preserve the stories of Indigenous people and others, such as missionaries, police and administrators involved in or affected by the process of child removals.’ Many of these interviews are available online. See:
https://www.nla.gov.au/oral-history/bringing-them-home-oral-history-project
A number of scholars have written histories of the stolen generations and histories of individual institutions.
Peter Read, A Rape of the soul so profound: the return of the stolen generations (St Leonards NSW, Allen & Unwin, 1999).
Doreen Mellor & Anna Haebich (eds), Many Voices: Reflections on experiences of Indigenous child separation (Canberra, National Library of Australia, 2002).
On Queensland see:
Ros Kidd, Black Lives, Government Lies (Sydney, University of NSW Press, 2000).
For Western Australia see:
Anna Haebich, Broken Circles: Fragmenting Indigenous Families (Fremantle WA, Fremantle Arts Centre Press, 2000)
For South Australia see:
Cameron Raynes, The Last Protector: The illegal removal of Aboriginal children from their parents in South Australia (Kent Town SA, Wakefield, 2009).
Stolen wages
Here again is a link to legislation by state and territory which gave state and territory governments extraordinary powers over Aboriginal people’s wages and income.
Australian Institute for Aboriginal and Torres Strait Islander Studies> Collections> To Remove and Protect:
https://aiatsis.gov.au/collection/featured-collections/remove-and-protect
The term ‘stolen wages’ is also used to cover the failure by the states to pay Aboriginal people the social welfare they were entitled to such as Old Age Pensions and sickness benefits. States insisted that the Commonwealth pay these sums to protectors, superintendents and missions; they then failed to pass it to individual recipients.
Lesley Williams tells the story of how her grandmother was forced to work at Queensland’s Cherbourg reserve into her eighties because in the 1960s the Queensland Government refused to pay the Aged Pension to Aboriginal people on reserves. See
Lesley and Tammy Williams, Not Just Black and White: A conversation between a mother and a daughter (St Lucia, UQP, 2015).
Equal wages campaign of 1965: opposing the Pastoral Industry Award
For more details on station workers’ campaign for equal pay, see
Thalia Anthony, ‘Reconciliation and Conciliation: The irreconcilable dilemma of the 1965 “Equal” Wages case for Aboriginal Station workers’ (2007) 93 Labour History 15-34.
For actions in the different states on Stolen Wages see
Andrew Gunstone, ‘Indigenous Stolen Wages and Campaigns for Reparations in Victoria’ (2014) 8 12 Indigenous Law Bulletin 3-7.
Robin Banks, ‘Stolen Wages: Settling the Debt’ (2008) 12 Australian Indigenous Law Review 55-67
For scholarly analysis of the legal arguments used in legal cases to recover unpaid wages, see
Margaret Thornton & Trish Luker,’The Wages of Sin: Compensation for Indigenous Workers’ (2009) 32 3 UNSW Law Journal 647-73.
On the history of non-payment and the campaign for redress in Queensland, see
Ros Kidd, Trustees on Trial: recovering the stolen wages (Canberra, Aboriginal Studies Press, 2002)
Ros Kidd, The Way We Civilise: Aboriginal Affairs - the Untold Story (St Lucia, UQP, 1997).
For personal accounts on recovering stolen and underpaid wages see
Joe McGinness, Son of Alyandabu: My fight for Aboriginal rights (St Lucia, UQP, 1991).
Lesley and Tammy Williams, Not Just Black and White: A conversation between a mother and a daughter (St Lucia, UQP, 2015).
Deaths in custody
The Royal Commission into Aboriginal Deaths in Custody, Final Report
http://www.austlii.edu.au/au/other/IndigLRes/rciadic/
Among the courts findings was that Aboriginal men were more likely to die in custody because they were more likely to be in custody. It attributed this to systemic racism, poverty, over-policing at the community level and over-imprisonment at the judicial level.
Initially the Commission was headed by Justice Muirhead but as the extent of the investigation widened four more senior legal figures – D J O’Dea, Hal Wootten, Lew Wyvill and Elliott Johnston – and Patrick Dodson, now a senator, and the only Indigenous person, were appointed to the commission.
They made 339 recommendations but government responses have been piecemeal. Among the recommended reforms were that custodial sentences should only be given as a last resort and that public drunkenness should be decriminalised, but central to the report was empowerment and self-determination for Aboriginal communities which needed to be facilitated by governments in meaningful ways. A national commitment to Reconciliation was also required.
Sadly, more than three decades on, governments have been piecemeal in implementing and hesitant to promote this agenda. Rather than minimising custodial sentences, Western Australia and the Northern Territory introduced mandatory sentencing. In 2004, against the advice of its ATSIC Review panel, the Howard Government abolished the Indigenous-elected and representative Aboriginal and Torres Strait Islander Commission, a major attempt at self-management at the national level. John Howard had opposed ATSIC since its foundation under Bob Hawke in 1990.
In the 1990s, the decade after the report was handed down, Aboriginal deaths in custody increased.
On RCIADIC see
Broome, Aboriginal Australians 270, 274-78.
Laura Beacroft, Mathew Lyneham & Matthew Willis, ‘Twenty Years of Monitoring since the Royal Commission into Aboriginal Deaths in Custody: Overview by the Australian Institute of Criminology’ (2011) 15 Australian Indigenous Law Review 64-80.
On abolition of ATSIC see
Broome, Aboriginal Australians 295, 335.
Angela Pratt & Scott Bennett, The end of ATSIC and the future administration of Indigenous affairs, Current Issues Brief No.4, Parliament of Australia, 2004-05. Available at
Aboriginal Deaths in Custody since the 1990s
Sadly Aboriginal deaths in custody have continued to rise despite the thorough investigation and recommendations from 1987 to 1991. Every state has had controversial and unexpected deaths of Indigenous men and women and at all levels of the criminal justice system.
One which provoked contention for more than fourteen years was that of Cameron (Mulrunji) Doomadgee who died in police custody on Palm Island in Queensland on 19 November 2004. There were three coronial inquiries, a Crime and Misconduct Commission inquiry into the decision by the Director of Public Prosecutions [DPP] not to prosecute the police officer involved, a judicial review of the DPP’s decision, the suicide of an essential witness, a supreme court trial of Sgt Hurley for manslaughter, his acquittal, criminal trials of several Aboriginal men who had rioted on the island in the aftermath of a peaceful protest over the death of their friend Mulrunji, prison sentences for these Aboriginal men, the transfer of Sgt Hurley to the Gold Coast where he faced allegations of fraud and assault of fellow police officers and eventually retired ‘medically unfit’ in 2017, and finally, after a Federal Court judge found the Queensland Government response was racist, a class action by the residents of Palm Island over the use of Riot Squad police. On 1May 2018 the Queensland Government agreed to pay the residents of Palm Island $30million to settle the class action.
It is an excellent case study of the cumulative pain that Indigenous deaths in custody cause not just to the individuals concerned but to their communities, to witnesses and to members of the criminal justice system. See
Chloe Hooper, The Tall Man: the death of Doomadgee (New York, Scribner, 2009).
Some historians see it as a case study of the long-term negative effects of the Aboriginal Protection Acts – Palm Island was originally an Aboriginal reserve run on authoritarian lines by a former police officer. See:
Broome, Aboriginal Australians 222-23; 327-28.
Joanne Watson, Palm Island: Through a long lens (Canberra, AIATSIS, 2010).
Indigenous sentencing courts
Crimes (Sentencing) Act 2005 (ACT)
http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/act/consol_act/ca2005182/
Criminal Procedure Act 1986 (NSW)
http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/cpa1986188/
Section 9(2)(p) of the Penalties and Sentences Act 1992 (Qld)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/pasa1992224/s9.html
Juvenile Justice Act 1992 (Qld)
https://www.legislation.qld.gov.au/view/pdf/inforce/1993-12-14/act-1992-044
Criminal Law Sentencing Act 1998 (SA)
Children & Young Persons (Koori court) Act 2004(vic)
http://classic.austlii.edu.au/au/legis/vic/num_act/caypca200489o2004459/
Sentencing Act 1995 (WA)
https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_888_homepage.html
Aboriginal people must first plead guilty: criteria for access to Aboriginal sentencing courts
In other jurisdictions an accused person has to have entered a plea or to have been found guilty. There are five criteria across all states and territories.
1.The offender must be Indigenous;
2. The offender must have entered a plea or have been found guilty;
3. The offender must agree to have the matter heard in the Indigenous Community Court;
4. The charge must generally be one that is heard in a Magistrates’ or Local Court (although there are some exceptions);
5. The offence must have occurred in the geographical area covered by the court.
For further discussion of these points and the philosophy underlying the courts, see
E. Marchetti and K Daly, ‘Indigenous Sentencing Courts: Towards a theoretical and jurisprudential model’(2007) 29 Sydney Law Review 416-43.
Discontinuation of courts in some states
In late 2011 the Northern Territory Community Courts were deemed to be inconsistent with s.91 of the Northern Territory National Emergency Response Act 2007 (Cth). In August 2020 Chief Minister Michael Gunner appointed the Territory’s first Indigenous Attorney-General, Selena Uibo, who has publicly stated she intends to re-introduce the courts.
In Queensland the Newman Government abolished the Murri Court in 2012 but it was reinstituted following a change of government in 2016.
Western Australia suspended its Community Courts in 2015 on the grounds that it had not improved Indigenous recidivism rates. This rationale, given it was not the primary aim of the process, was criticised by the Australian Law Reform in a report in 2018 which recommended all states and territories establish specialist Aboriginal and Torres Strait Islander sentencing courts. See Recommendations 10-2 and 10-3, Pathways to Justice: Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133) available at
Further recommended reading
E. Marchetti & T. Anthony, 'Sentencing Indigenous offenders in Canada, Australia and New Zealand' in M. Tonry(ed), Oxford Handbooks Online: Criminology and Criminal Justice , 2016, pp. 1-30.
The Intervention
Northern Territory National Emergency Response Act 2007 (Cth)
http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num_act/ntnera2007531/
Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse
The politics surrounding the Northern Territory Intervention were quite remarkable. In the early 2000s official reporting of child neglect and abuse in Indigenous communities was low owing to lack of services and difficulties in reporting it. However there were media accounts of non-Indigenous men travelling to remote communities to sexually abuse Aboriginal children by exploiting their addiction to petrol-sniffing and other substance abuse. Graphic stories that often failed to differentiate between adolescents engaging in sex with one another and older men preying on small children also appeared over many months. This reporting came on top of widespread concern over many years about conditions in remote townships which were struggling to cope with problems of domestic violence and substance abuse. Elders also began to express concern about pornography and alcohol appearing in their communities. In response in August 2006 the Northern Territory Government set up an inquiry into the sexual abuse of Aboriginal children.
This Inquiry was chaired by a highly respected Aboriginal elder, Pat Anderson, and Rex Wild QC. Their consultations with Indigenous communities confirmed that there was a serious social problem. Eight months later they submitted a detailed report, usually referred to by its shortened title, Little Children are Sacred, in July 2007.
You can read the report here:
Their recommendations encapsulate an Aboriginal-centred approach focused on resourcing Aboriginal communities so that they could manage the problem. They also called for training for Aboriginal people so that they could be employed as community and health workers and then employed in remote communities with professional support and appropriate mentoring. Other needs that they identified included:
• Increased Aboriginal recruitment for the police service
• Training for police in child abuse indicators
• Training for police to deal with victims of sexual assault
• More female police officers to be employed in remote communities
• Appointment of specialists with training in interviewing children
• Mental health services for children and adolescents in Aboriginal communities
• Provision of therapy for victims of sexual abuse
• Rehabilitation programs for offenders
• Supervision of parolees
• Early childhood health services for children aged 0-5 years in remote communities
• Services to treat intergenerational trauma
Recommendations relating to law administration in the Northern Territory – no doubt initiated by Chairman Rex Wild – were included. They called for a dialogue between Aboriginal law men, Aboriginal law women and senior members of the legal profession on how to strengthen and support each legal system. This was a necessary first step for recommendation 72 which called on the NT Government to give
• consideration to recognising and incorporating into Northern Territory law aspects of Aboriginal law that effectively contribute to the restoration of law and order within Aboriginal communities and in particular … [protect] Aboriginal children from sexual abuse.
This report was predicated on listening to and supporting Aboriginal communities so that they could solve this dire social problem in culturally appropriate ways.
This makes the contrast with the Howard Government’s response all the greater.
Criticism of the Intervention
Given the long campaign for land rights and legal actions of the previous three decades, it is not surprising that Aboriginal people were deeply suspicious of the Commonwealth’s resumption of controls over Aboriginal lands. There was also frustration over the poor communication from Canberra and from the army personnel on the ground; documents were provided in English only, a third language for many elders.
The ending of the Community Development Employment Projects decreased employment in the communities forcing many young Aboriginal people to leave while older members who remained were forced to labour on the unemployment benefit, well below award rates of pay. Anderson & Wild had proposed ways to develop and enhance Aboriginal communities whereas the Intervention did the reverse.
The top-down, Canberra-knows-best solution reminded many Aboriginal people of old mission days, especially when the Basics Card was introduced. The card when it was first introduced could only be used at businesses approved by the Commonwealth; it was designed to prevent the purchase of alcohol and cigarettes by depositing most of an individual’s welfare payment onto the card leaving them with a small amount of money only for discretionary spending. Some Aboriginal people called it a ‘ration card’ the term used on missions and reserves some fifty years previously.
In the end no paedophile rings were uncovered as a result of the Intervention and patterns of drinking and smoking remained unchanged.
For more on the crisis in remote Aboriginal communities leading to the Little Children are Sacred Inquiry and on the historical context of the Intervention see
Broome, Aboriginal Australians 326-35
Broome, Aboriginal Australians 339-44.
The Uluru Statement from the Heart
Reconciliation
In the aftermath of the RCIADIC the Commonwealth Parliament had voted unanimously for a national process of reconciliation between Indigenous and non-Indigenous Australians. As a result the Hawke Government founded the Council for Aboriginal Reconciliation in 1991. The hope was that Australia would begin the new century and its centenary of Federation in a spirit which valued Aboriginal and Torres Strait Island culture, and provided justice and equity for all.
Bipartisan support for Reconciliation fell apart with the election of Pauline Hanson to the federal parliament in 1996 and John Howard becoming Prime Minister in the same year. Howard was uncomfortable in a post-Mabo Australia. As well as extinguishing additional native title rights through his Wik legislation, he refused to apologise to the Stolen Generations and when the Council for Aboriginal Reconciliation organised a reconciliation march across Sydney Harbour Bridge in the year 2000, he banned his cabinet ministers from participating. In the end several ministers defied him and marched in what remains the largest march for any cause in Australia’s history. According to the National Museum of Australia, 250 000 people marched in Sydney, 300 000 in Melbourne and 60 000 in Brisbane as well as thousands in each of the other capital cities. See Defining Moments, Bridge Walk for Reconciliation at https://www.nma.gov.au/defining-moments/resources/walk-for-reconciliation.
Constitutional Centenary and Indigenous Recognition
Howard was a great supporter of celebrating the Australian constitution’s centenary in 2001, however, and in 1999 with the poet Les Murray, he drafted a preamble to the constitution which included acknowledgement of Aboriginal and Torres Strait Islander Australians. In the debate which followed, dissatisfaction over a feel-good statement which could only be symbolic was widely expressed. Then in the lead up to the 2007 federal election, PM Howard went further and promised constitutional recognition of First Nations if re-elected.
The development of the reconciliation campaign and John Howard’s position on it is discussed in Broome, Aboriginal Australians, pp. 317-19, 334, 344.
Referendum Council
John Howard lost the 2007 federal election but once Malcolm Turnbull assumed the prime ministership in September 2015 there was finally bipartisanship in favour of amending the constitution to recognise Aboriginal and Torres Strait Islander peoples. PM Turnbull with Bill Shorten, the leader of the Opposition, jointly appointed a Referendum Council with the goal of maintaining the consensus that would be required for any referendum to pass. The 10 member Referendum Council was appointed on 7 December 2015; its mandate was to consult with Australians on how to recognise Australia’s Indigenous peoples in the constitution and to advise the government on the process. Consultations were held across the country, its first report was handed to the government on 30 June 2017 and its final report in November 2018.
On the appointment of the Referendum Council see its website https://www.referendumcouncil.org.au/council.html
Uluru Statement from the Heart
The Uluru Statement forms part of the Referendum Council’s final report which you can read here https://www.referendumcouncil.org.au/final-report.html
Prime Minister’s Response
MEDIA RELEASE
26 Oct 2017
Prime Minister, Attorney-General, Minister for Indigenous Affairs
Indigenous Affairs
The Turnbull Government has carefully considered the Referendum Council’s call to amend the Constitution to provide for a national Indigenous representative assembly to constitute a “Voice to Parliament”.
The Government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum.
Our democracy is built on the foundation of all Australian citizens having equal civic rights - all being able to vote for, stand for and serve in either of the two chambers of our national Parliament - the House of Representatives and the Senate.
A constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle.
It would inevitably become seen as a third chamber of Parliament. The Referendum Council noted the concerns that the proposed body would have insufficient power if its constitutional function was advisory only.
The Referendum Council provided no guidance as to how this new representative assembly would be elected or how the diversity of Indigenous circumstance and experience could be fairly or democratically represented.
Moreover, the Government does not believe such a radical change to our constitution’s representative institutions has any realistic prospect of being supported by a majority of Australians in a majority of States.
The Government believes that any proposal for constitutional change should conform to the principles laid down by the 2012 Expert Panel, namely that any proposal should “be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums”.
The Referendum Council said the Voice to Parliament was a “take it or leave it” proposal for the Parliament and the Australian people. We do not agree.
The Council’s proposal for an Indigenous representative assembly, or Voice, is new to the discussion about Constitutional change, and dismissed the extensive and valuable work done over the past decade - largely with bipartisan support.
We are confident that we can build on that work and develop Constitutional amendments that will unite our nation rather than establish a new national representative assembly open to some Australians only.
The challenge remains to find a Constitutional amendment that will succeed, and which does not undermine the universal principles of unity, equality and “one person one vote”.
We have listened to the arguments put forward by proponents of the Voice, and both understand and recognise the desire for Aboriginal and Torres Strait Islander Australians to have a greater say in their own affairs.
We acknowledge the values and the aspirations which lie at the heart of the Uluru Statement. People who ask for a voice feel voiceless or feel like they’re not being heard. We remain committed to finding effective ways to develop stronger local voices and empowerment of local people.
Our goal should be to see more Aboriginal and Torres Strait Islander Australians serving in the House and the Senate - members of a Parliament which is elected by all Australians.
The Government has written in response to Mr Shorten’s call for a Joint Select Committee, and have asked that the committee considers the recommendations of the existing bodies of work developed by the Expert Panel (2012), the Joint Select Committee on Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Referendum Council report (2017).
The Coalition continues to aim to work in a bipartisan way to support Constitutional recognition.
