Transcript Document

The
Australian
Legal System
and the
Common
Law
‘Downunder’
SEMINAR 4
AUSTRALIA AND
INDIGENOUS AUSTRALIANS
SOME STATISTICS (2011 Census):
• 669,990 (3% of total population)
• 1921 census: 58,867 “full-blood” Aborgines (just over 1% of population)
• The highest number of Indigenous Australians lives in New South Wales
(208,500)
• The Northern Territory had the highest proportion of Indigenous Australians in its
total population (30 per cent).
• Indigenous Australians have a much younger age profile than non-Indigenous
Australians, with a median age of 21.8 years compared to 37.6 years
• 35% live in major urban centres
• 44% live in inner and outer regional areas
• 21% live in remote/very remote areas
• Indigenous Australians comprised about half of the total Australian population in
very remote areas.
Cultural protocols:
Aboriginal and Torres Strait Islander
readers should be aware that this
document may contain images or
names of people who have since
passed away.
The third world: 21st century
Australia?
• http://theconversation.com/reviewpilgers-utopia-shows-us-aboriginalaustralia-in-2014-21965
• http://youtu.be/ht8_5UlcgSQ
Controversies in determining who is an Indigenous Australian:
• Often the following are used:
• Proof of descent;
• Self-Identification;
• Community Recognition
• An example of the difficulties: A Senator from Tasmania, Jackie
Lambie’s claims to aboriginal heritage is disputed: 9 September 2014:
http://www.theguardian.com/world/2014/sep/09/jacqui-lambie-warnstasmanian-indigenous-elder-to-watch-his-step
The question of British Sovereignty over Australia and
Australia’s Indigenous peoples
English sovereignty was (and is) contested in fact and in law
Attempts to repel invasion
Attempts to challenge sovereignty in the courts:
R v Ballard or Barrett, [1829] NSW Sup C 26 (13 June 1829)
R v Murrell and Bummaree [1836] NSW Sup C 35 (5 Feb 1836)
R v Bonjon [1841] NSW Sup C 92 (16 September 1841)
www.law.mq.edu.au/research/colonial_case_law/nsw/site/
scnsw_home
but
Attorney General (NSW) v Brown (1847)1 Legge 312
Cooper v Stuart (1889) 14 App Cas 286 (Privy Council)
and then
Coe v Commonwealth (1979) 24 ALR 118
Responsibility for Indigenous Policy
1800s: A Dying Race
•
•
•
•
•
Disease
Alcoholism
Dispossession
Conversion to Christianity
Resettlement on missions
Responsibility for Indigenous Policy
1900s: Assimilation and Discrimination
Responsibility for Indigenous Policy
1960s: The rise of indigenous
consciousness
The rise of indigenous consciousness
• eg the Gurindji people striking at the
Wave Hill cattle station
• 1967 Referendum
• Development of a role for the
Commonwealth Government in
Aboriginal Affairs (as opposed to the
states)
• Statutory land rights schemes (South
Australia, Northern Territory)
1967 Referendum
Section 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
…..
Land
Rights
and
common
law
Native title
rights
People talk about country in the same way that
they would talk about a person: they speak to
country, sing to country, visit country, worry
about country, feel sorry for country, and long
for country. People say that country knows,
hears, smells, takes notice, takes care, is sorry
or happy. … country is a living entity … with a
consciousness, and a will toward life. Because
of this richness, country is home, and peace;
nourishment for body, mind, and spirit; heart’s
ease.
Deborah Bird Rose, Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness
(Australian Heritage Commission, 1996) 7.
The Wave Hill Strike 1966-1975
• The Australian Broadcasting Commission
Story 1968
– http://www.youtube.com/watch?v=4whwtefT9q0
• “From Little Things” Part 1
– http://www.youtube.com/watch?v=27TUaScXco8
• “From Little Things” Part 2
– http://www.youtube.com/watch?v=B4pU4-WXfk8
Milurrpum v Nobalco
(1971) 17 FLR 141
Milurrpum v Nobalco
(1971) 17 FLR 141
“The
evidence shows a subtle and
elaborate system highly adapted to the
country in which the people led their lives,
which provided a stable order of society
and was remarkably free of the vagaries
of personal whim or influence. If ever a
system could be called ‘a government of
laws, and not men’, it is that shown in the
evidence before me.”
• 1975: Resolution at Wave Hill: Gurindji people are
given a portion of the Wave Hill station
• 1976: Aboriginal Land Rights Act (Cth) enacted for
the Northern Territory
• 1982: Eddie Mabo and others lodge a statement of
claim in the High Court of Australia claiming native
title to the islands and sea in the Murray Islands
(between Australia and Papua New Guinea)
– link to map
Mabo v Queensland (No2)
• 1985:The Queensland Coast Islands Declaratory Act 1985 (Qld). The Act
purports to extinguish any native title that might exist in the Torres Strait,
without compensation.
• 1988: In Mabo v Queensland (No 1), the High Court finds that the
Queensland Coast Islands Declaratory Act is inconsistent with the Racial
Discrimination Act and therefore invalid.
• 21 January1992: Mabo died in Brisbane whilst being treated for cancer.
• On 3 June 1992:
– The High Court recognises native title as a common law property right, rejecting
the doctrine of terra nullius.
– The High Court declares that, subject to any acts of extinguishment, the Meriam
people are ‘entitled as against the whole world, to possession, occupation, use
and enjoyment of the island of Mer’, an exclusive possession form of native title.
Mabo v Queensland (No2)
• A documentary reflecting on the 20th anniversary of
the Mabo (No 2) decision:
– http://www.youtube.com/watch?v=XKTSHW1UzEM
Mabo v Queensland (No2)
• The High Court recognised a new form of Indigenous
land right: common law native title:
– The common law which had for so long been the source of
legal dispossession of Indigenous Australian now proved
that it could also protect their rights in land.
• Confirmed British sovereignty over Australia upon
settlement and declared that as a result, the Crown
acquired a title to all land.
• The Court refused to abandon the idea that when the
Crown acquired sovereignty that the doctrine of
tenure applied.
“every parcel of land in England is held either mediately
or immediately of the King who is the Lord Paramount;
the term "tenure" is used to signify the relationship
between tenant and lord not the relationship between
tenant and land. The characteristic of feudalism "is not
tenere terram, but tenere terram de X" … It is implicit in
the relationship of tenure that both lord and tenant have
an interest in the land: "The King had 'dominium
directum', the subject 'dominium utile'" … Absent a
"dominium directum" in the Crown, there would be no
foundation for a tenure arising on the making of a grant
of land. When the Crown acquired territory outside
England which was to be subject to the common law,
there was a natural assumption that the doctrine of
tenure should be the basis of the land law.’
In discharging its duty to declare the common law of Australia, this
Court is not free to adopt rules that accord with contemporary
notions of justice and human rights if their adoption would fracture
the skeleton of principle which gives the body of our law its
shape and internal consistency. Australian law is not only the
historical successor of, but is an organic development from, the
law of England. Although our law is the prisoner of its history, it is
not now bound by decisions of courts in the hierarchy of an
Empire then concerned with the development of its colonies. It is
not immaterial to the resolution of the present problem that, since
the Australia Act 1986 (Cth) came into operation, the law of this
country is entirely free of Imperial control. The law which governs
Australia is Australian law.
….
Increasingly since [the abolition of appeals to the Privy Council ]
the common law of Australia has been substantially in the hands
of this Court. Here rests the ultimate responsibility of declaring the
law of the nation. Although this Court is free to depart from
English precedent which was earlier followed as stating the
common law of this country … it cannot do so where the
departure would fracture what I have called the skeleton of
principle. The Court is even more reluctant to depart from earlier
decisions of its own.
….
The peace and order of Australian society is built on the legal
system. It can be modified to bring it into conformity with
contemporary notions of justice and human rights, but it cannot be
destroyed.
Rejection of Terra Nullius
The facts as we know them today do not fit the
"absence of law" or "barbarian" theory underpinning the
colonial reception of the common law of England. That
being so, there is no warrant for applying in these times
rules of the English common law which were the
product of that theory. It would be a curious doctrine to
propound today that, when the benefit of the common
law was first extended to Her Majesty's indigenous
subjects in the Antipodes, its first fruits were to strip
them of their right to occupy their ancestral lands. Yet
the supposedly barbarian nature of indigenous people
provided the common law of England with the
justification for denying them their traditional rights …
International law and the development of the
Australian common law
If the international law notion that inhabited land may be
classified as terra nullius no longer commands general
support, the doctrines of the common law which depend
on the notion that native peoples may be ‘so low in the
scale of social organization’ that it is ‘idle to impute to
such people some shadow of the rights known to our
law’ can hardly be retained. If it were permissible in past
centuries to keep the common law in step with
international law, it is imperative in today’s world that
the common law should neither be nor be seen to be
frozen in an age of racial discrimination.
Controversies:
• Updating the common law or creating
new common law?
• Response of the Commonwealth
Government to the decision:
– Native Title Act 1993 (Cth)
The Future
• Health, Housing, Education, Welfare
• Constitutional recognition (tomorrow’s
class)
• Amendments to the Native Title Act?