Aboriginal Law Bulletin
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In light of the Federal election being held on 2 March, the Aboriginal Law Bulletin thought it timely to ask the major political parties to spell out their positions on Australian Indigenous affairs. The following article contains the reponses received. The Labor Party provided a full copy of their party platform on Indigenous affairs, from which selected items have been reproduced (the numbers in square brackets refer to the paragraph number). Selected material from the Coalition's policy is also reproduced (square-bracketed numbers refer to the page in the policy statement). The Australian Democrats' and WA Greens' policies are printed in their entirety. Also included are selected priorities identified by ATSIC IN ATSIC - the Future: An Indigenous Affairs Agenda for an incoming Commonwealth Government. Material is reproduced exactly as it appears in the policy statements.
The incoming Commonwealth Government will have a requirement for advice on indigenous issues which reflects the aspirations and culture of indigenous peoples. We call on an incoming Government to reaffirm ATSIC in that role and as a supplementary funder of services for Aboriginal and Torres Strait Islander peoples. Indigenous affairs must be a high priority on the national agenda ...
For ATSIC to be effective, and empowerment and self-determination to be a reality, it is essential that ATSIC's funding base be maintained, along with that of the Torres Strait Regional Authority. As Aboriginal and Torres Strait Islander peoples, we must continue to have the capacity to determine priorities and make decision on all matters affecting our lives ...
ATSIC is in the best position to coordinate the views of Aboriginal and Torres Strait Islander peoples on any proposed amendments to the Native Title Act 1993.
We call on an incoming Government to negotiate any proposed amendments to the Act with ATSIC, Regional Councils, Land Councils, Native Title Representative Bodies, and other stakeholders.
ATSIC seeks to ensure that Aboriginal and Torres Strait Islander peoples are included in any proposals for constitutional reform, including any proposal to establish an Australian Republic. In any such reform, ATSIC seeks recognition of the special status of Aboriginal and Torres Strait Islander peoples as Australia's indigenous peoples.
ATSICseeks cross-party support for a comprehensive settlement of the social, economic, political and cultural rights and the outstanding grievances of Aboriginal and Torres Strait Islander peoples, with a formal act of reconciliation (or treaty) to be enacted by the centenary of Australian Federation in 2001 as an integral part of the reconciliation process.
ATSIC has submitted to the Commonwealth Government a comprehensive report Recognition, Rights and Reform ... An incoming Government should commit itself to a process of responding to this report and related reports on social justice from the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner with a view to an interim response within 12 months of the election.
An incoming Government should also ensure that adequate resources are made available to the Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families to allow for a full and effective inquiry and for Aboriginal and Torres Strait Islander peoples to make submissions.
ATSIChas documented ... a deficit of $3 billion in the provision of housing and infrastructure for Aboriginal and Torres Strait Islander peoples. On the basis of current levels of expenditure, it will take 20 years to overcome this disadvantage.
An incoming Government should make a commitment to remove the backlog by 2001 including through the provision of additional focused resources under the Health Infrastructure Priority Projects (HIPP) scheme.
Reform and Commonwealth-State financial relations is critical to ensuring that indigenous peoples enjoy normal citizenship rights and have equal access to, and an equitable share of, resources managed by governments ...
It is political commitment - not new ideas - which is critical to this area and the agenda should include:
ATSICseeks to negotiate with an incoming Government objectives for a further review of the ATSIC Act as provided for in its enabling legislation as a national framework for the achievement of Aboriginal and Torres Strait Islander empowerment and self-determination, including the further devolution of decision making to the regional level ...
Regional Councils already have decision making powers over 60% of the ATSIC budget and the 1993 ATSICAmendment Act made significant reforms which strengthened Regional Councils.
A review should be completed by ATSIC within 12 months on the options for further change directed at devolution including moving towards the establishment of Regional Authorities.
Aboriginal and Torres Strait Islander people are the original owners and occupiers of this continent. Over many thousands of years they have developed and sustained unique cultural, social and economic patterns of life appropriate to the variety of Australia's environ-
mental conditions [1].
Since the colonisation of Australia, Aboriginal and Torres Strait Islander people have been dispossessed, dispersed, and discriminated against. The collective actions of generations of non-indigenous Australians and their governments have led to widespread conditions of poverty, unemployment and extremes of social and personal stress. This legacy of our past has shaped the nation we are and the position that Aboriginal and Torres Strait Islander people hold within that nation [2].
Labor will:-
Grant land rights to Aboriginal people using the principles and recommendations of the Aboriginal Land Rights Commission (Woodward Report) as a basis for legislation, subject to a continuing review [10].
Allocate funds to allow the acquisition of land for Aboriginal people throughout Australia and accelerate land acquisition programs in areas of disadvantage and priority concern to Aboriginal people [12].
Where mining or other economic activities take place on Aboriginal land, ensure that Aboriginal people have the right, through appropriate legislation, to -
a. refuse permission for mining on their land or impose conditions under which mining may proceed. To set aside a refusal, or conditions imposed, shall require an Act of Parliament;
b. receive royalties from mining or other profits from land use on Aboriginal land, to be paid to appropriate bodies administered by Aboriginal people for the use and benefit of the Aboriginal people in the particular State or Territory. The needs of Aboriginal people directly affected by that land use shall be accorded priority in the distribution of such funds; and
c. ensure that sacred/significant sites on their land are adequately protected [13].
Recognise and respect the decision of the High Court in the Mabo case which rejected the legal fiction of terra nullius and recognised the prior ownership of the continent and islands now known as Australia by Aboriginal and Torres Strait Islander people [17].
Support legislation which:-
a. provides mechanisms for the identification and protection of sacred sites and other sites of significance; and
b. is in accordance with the National Principles for the Return of Aboriginal and Torres Strait Islander Cultural Property, adopted by Commonwealth, State and Territory governments, at the Australian Aboriginal Affairs Council (AAAC), in Brisbane in August 1993, to facilitate the return to Aboriginal and Torres Strait Islander people of sacred objects, skeletal and other human remains, and other significant cultural property of Aboriginal and Torres Strait Islander people, including material held in collections in Australia and overseas [21].
Ensure that Aboriginal and Torres Strait Islander people are appropriately involved in research projects undertaken into Aboriginal and Torres Strait Islander history and culture and have effective control over institutions specialising in research into Aboriginal and Torres Strait Islander issues [24].
Support the Aboriginal and Torres Strait Islander Commission. In particular, Labor will -
a. recognise ATSIC as the principal vehicle for addressing Aboriginal and Torres Strait Islander self-determination and securing inter-governmental cooperation in accordance with the Aboriginal and Torres Strait Islander Commission Act 1989;
b. work to ensure wide community support for the principles of self-determination embodied in this legislation and recognise the crucial role which ATSIC regional plans will play in addressing Aboriginal and Torres Strait Islander self-determination; and
c. work at all levels of government to encourage inter-governmental cooperation and recognise the self-determination aspirations expressed through ATSIC regional plans [32].
Facilitate greater access for Aboriginal and Torres Strait Islander people to protection offered by the Racial Discrimination Act 1975 and to other legislative provisions for the protection of human rights [34].
Ensure that Aboriginal and Torres Strait Islander women have equal access to decision-making forums and are directly involved in negotiations which affect their futures [43].
Support the establishment of Aboriginal and Torres Strait Islander women's resources centres [46].
As a matter of priority, expand in cooperation with appropriate Aboriginal and Torres Strait Islander organisations and with State, Territory and Local governments, a program to house all Aboriginal and Torres Strait Islander people to a standard acceptable to them and devised in consultation with them. As part of that process, ensure that Aboriginal and Torres Strait Islander women have a positive role in the implementation of that program [47].
Recognise that, in efforts to address child poverty, the needs of Aboriginal and Torres Strait Islander children must be a priority for all governments by reason of the disadvantage experienced by Aboriginal and Torres Strait Islander people [60].
In order to attempt to redress the effects of Aboriginal and Torres Strait Islander children having been removed from their families under past government policies, support necessary funding for organisations working to address the needs of the Aboriginal and Torres Strait Islander families affected, in line with the provisions of the Convention on the Rights of
the Child [63].
Recognise that the Royal Commission recommendations and the Commonwealth, State and Territory responses to the Royal Commission, provide a specific and targeted agenda for governments to tackle Aboriginal and Torres Strait Islander disadvantages and aspirations and support the urgent implementation of its detailed recommendations by all levels
of government [85].
Give effect to the process of reconciliation between indigenous and non-indigenous Australians to occur over the remainder of the coming decade leading to the centenary of Federation in 2001, which includes the following aspects -
a. a national objective for the achievement of social justice for Aboriginal and Torres Strait Islander people recognising that there can be no reconciliation without justice;
b. an agenda of public awareness and public education addressed to the non-indigenous community;
c. consultation as to whether the process of reconciliation would be advanced by a document [88].
LIBERAL AND NATIONAL PARTIES:
Through 40,000 years of history, Australia's Indigenous people - Aboriginal and Torres Strait Islanders - have developed a strong commitment to family, culture, community, tradition and the environment.
Since the 1967 referendum, when a Coalition Government established the long overdue citizenship rights of Indigenous people, there has been an increasing involvement of the Commonwealth Government in Indigenous Affairs, with the fundamental directions of post-assimilation policy set by Coalition Governments.
Since the 1967 referendum, Indigenous culture has flourished and Indigenous music, Indigenous art and Indigenous sportsmen and sportswomen have become important symbols of our nation ...
In 1976 the Coalition Government passed the Aboriginal Land Rights (Northern Territory) Act 1976, which remains the most far reaching land rights legislation in Australia.
With the wiping away of the doctrine of terra nullius, the common law of this nation acknowledged the prior occupation of Australia by its Indigenous people and recognised that certain customary rights continue ... [4]
High priority will be given to reducing Indigenous deaths in custody. It is of grave concern to the Coalition that there have been 87 Aboriginal deaths in custody between June 1989, when the Royal Commission commenced its investigations, and January 1996.
While Aboriginal deaths in custody are slightly above the rate of non-Aboriginal deaths in custody, the real problem lies in the high incarceration rate of Aboriginal people.
The high incarceration rate stems from a number of causes. State/Territories are currently developing a number of programs to reduce the rate of recidivism and to ensure that Aboriginal people receive equity before the law and are not discriminated against in the justice system.
However, there has been a lack of coordination between the Commonwealth and the State/Territories regarding the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody.
Immediately on coming to Government, the Coalition will organise a special summit meeting on Aboriginal Deaths in Custody and the causes of Aboriginal incarceration rates with the State and Territory Ministers for Aboriginal Affairs, Health, and State and Territory Attorneys-General. [6-7]
The Coalition approach to Aboriginal land rights is based on the following:
a) the fact of Native Title where it has survived;
b) the Constitutional protection given to all property interests against Government resumption without compensation;
c) the prohibition of racially discriminatory measures or laws; and
d) the special relationship between Indigenous people and land which is at the core of Indigenous culture.
In Government the Coalition will:
a) retain the Native Title Act;
b) reserve the right to amend the Native Title Act to ensure its workability;
c) respect the provisions of the Racial Discrimination Act; and
d) ensure that any amendments to the Native Title Act are preceded by wide consultation. [9]
In Government the Coalition will:
a) review the Heritage Act;
b) ensure that mechanisms are in place to guarantee natural justice, thereby avoiding ministerial decisions like those recently overturned by the Federal Court;
c) seek a meeting of State and Territory Ministers for Aboriginal Affairs to:
i) determine ways to ensure that traditional culture and religious beliefs are properly protected;
ii) seek a better integration of Commonwealth and States/Territories Acts so that the Commonwealth Heritage Act takes into account State/Territory processes while retaining its role as a forum of last resort; and
iii) encourage States/Territories to review their own Acts to bring about greater consistency across Australia. [11]
In Government the Coalition will maintain the one-off veto at the exploration stage to protect Aboriginal interests.
Within the context of the Act, the Coalition will seek further cooperation between the Aboriginal people and the mining industry to maximise economic and employment opportunities for Indigenous people in the Northern Territory.
When the Northern Territory becomes a State, the Act will be patriated to the Northern Territory with Commonwealth legislative, or Northern Territory constitutional guarantees that the integrity of the Act will be kept and that Aboriginal landowners will retain the one-off veto. [12]
In Government the Coalition will:
a) make the provision of water, sewerage and housing to Indigenous communities its highest priority and, recognising the huge backlog of need, work towards achieving appropriate accommodation for all Indigenous people;
b) in conjunction with State/Territory Governments and ATSIC, establish an Australia-wide priority list by identifying those communities most in need - using the criteria of the health of children and the condition of the community's health infrastructure;
c) assess the progress and effectiveness of ATSIC's HIPP program with the aim of either integrating this program with, or using it as a base for, an overall strategy to address the infrastructure needs of disadvantaged communities;
d) consult with the relevant communities at the planning stage and all other stages, to ensure that water, sewerage and housing infrastructure meet the needs of that community;
e) work to ensure that local communities have the skills and expertise required to maintain health and housing infrastructure ... [18]
Family violence is unacceptable in any community.
A Coalition Government will work with the State/Territories to ensure that all communities are aware of the unacceptability of family violence and know that the full force of law will be brought to bear on the perpetrators of family violence.
In conjunction with State and Territory Governments, the Coalition supports the formation of women's groups to empower women to fight family violence. [20]
In Government the Coalition will:
a) review all Commonwealth programs for Indigenous students to assess their relevance and their educational outcomes;
b) subject Commonwealth spending on Indigenous education to a full audit to identify inefficiencies and ascertain where better outcomes can be achieved;
c) liaise with the State/Territories to determine how to achieve improved outcomes, as primary and secondary education are State/Territory Government responsibilities; ...
e) ensure that Indigenous people have a greater voice in determining Indigenous educational needs. [27]
AUSTRALIAN DEMOCRATS:
To create the economic, social and legal framework which will enable Australia's indigenous peoples to exercise the right to determine and manage their own lives and futures, including the right to maintain their traditional cultures, customs and lifestyles.
To achieve this objective, the Australian Democrats:
1. (i) acknowledge that the spiritual attachment of Australia's indigenous peoples to this land extends back in time over
many thousands of years, and
(ii) affirm that the indigenous peoples of Australia have never surrendered this land to the British colonisers and their successors.
2. support the right of Aboriginal and Torres Strait Islander people to gain appropriate recognition of their traditions and cultures as a fundamental component of reconciliation and Australian nationhood.
3. (i) will seek where practicable to return the land base and sacred areas to its original inhabitants or their descendants.
This will include, but not be limited to, land which is able to be claimed through Native Title legislation.
(ii) However, where it is agreed that it is inappropriate to restore land to the indigenous people, they shall be given land relevant to their needs or receive compensation for dispossession.
4. support the recognition of Native Title as a valid form of land ownership.
5. support the existence of a national body representing Aboriginal and Torres Strait Islander people which has the capacity to act and respond to government at the national level and for the receipt and disbursement of Commonwealth funds.
6. acknowledge the right of the Parliament of Australia to override by legislation any decision of indigenous owners concerning their lands where such a decision is considered by the Parliament to be contrary to the national interest.
7. use Constitutional powers to override State objections where negotiations with State governments on any Aboriginal and Torres Strait Islander matters are unsuccessful and remove any unnecessary State controls over Aboriginal and Torres Strait Islander issues.
8. will act to redress disadvantages faced by Aboriginal and Torres Strait Islander people in the areas of health, housing, education and the legal system.
9. will recognise that Indigenous people should have hunting and fishing rights in accordance with their traditional practices. Hunting for protected species will be regulated in consultation with the Australian National Parks and Wildlife Service.
10. recognise the need to evolve an intervening accommodation between Customary Law and current Australian law, placing much greater opportunity and responsibility on Tribal elders of both sexes to have increased authority to order the lives, rules and sanctions in their communities.
11. will work to ensure that all appropriate channels for communication with Indigenous people are used.
12. acknowledge all rights regarded as belonging to Aboriginal people because of their prior ownership of the land as also applying in respect of Torres Strait Islanders.
13. will promote awareness of our Australian Aboriginal heritage.
THE GREENS (WA)
The Aboriginal and Torres Strait Islander peoples are the legitimate owners of Australia. Aboriginal and Torres Strait Islander peoples have been dispossessed by the European conquest and invasion of Australia, they have been the victims of cultural domination and targets of deliberate genocide. The calculated destruction of many languages and traditional cultures has had disastrous consequences; Aboriginal and Torres Strait Islander people have suffered and continue to suffer many grave injustices. Australia, in its post-Mabo and pre-republic quest for reconciliation, has to address the inhumane and destructive parts of its ongoing history of interaction with the indigenous peoples of this land.
The Greens (WA):
are committed to policies that enable Aboriginal and Torres Strait Islander peoples to re-assert their nationshood. This will involve acknowledgement of prior-ownership, culture, law and traditional methods of decision making.
are opposed to centralised decision making processes that force Aboriginal people and communities into artificial constructs to satisfy white politics and bureaucracies, therefore we see the Aboriginal and Torres Strait Islander Commission (ATSIC) to be fundamentally flawed.
support and encourage decentralised decision making that empowers local communities, this needs to involve a true acknowledgement and implementation of the principles of self determination. This means that the strategic policy decision making of Government should work towards accepting self determination that is driven by the needs and aspirations and decision making processes of local Aboriginal communities, that is to say it should be a bottom-up process not a top down one.
Aboriginal and Torres Strait Islander cultures developed and thrived in Australia many thousands of years before the introduction of Anglo-Celtic cultures. The conquest of Australia created an unhealthy situation where an introduced Anglo-Celtic culture has come to dominate and virtually exclude that of the indigenous peoples of Australia. Social justice demands that Aboriginal and Torres Strait Islander cultures be recognised in all legal, social and economic structures, as equal to that of the colonisers. This is called bi-culturalism, it is structural recognition of and respect for two established Australian cultural backgrounds. This must occur before we can make any real and substantial progress towards multi-culturalism.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1996/7.html