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Critically analyse how the Aborigines Protection Act 1909 (NSW) and the Aborigines Protection Act 1915 (NSW) has impacted Aboriginal and Torres Strait Islander people’s relationship with the law?
Introduction
Aboriginal and Torres Strait Islander peoples are considered to be the very first inhabitants of Australia, based on the old definitions linked with the skin colour. Previously they were used to be called as Aboriginal blood but as of present times their ancestry has become their identity. Federal Government is also in acceptance of the term aborigine and have defined them as the one being the descendant of aborigines or is being identified as aborigine and is also accepted as being the part of the community.
Purpose of legislation
The Aborigines Protection Act 1909 was aimed to protect and also to take care of the aborigines and in so doing the Act aimed to repeal an enactment Supply of Liquors to Aborigines Prevention Act, and also to provide amendment to the Vagrancy Act, 1902, and the Police Offences (Amendment) Act, 1908. The Aborigines Protected Board was vested with more legal powers in order to protect and also to take care of the aborigines which was applicable for all the aborigines along with the special protection for their children and also the youth. Many amending Acts was taken into consideration and finally all of them was repealed with the existence of the Aborigines Act 1969.
The Aborigines Protection Amending Act 1915 was an addendum which made the significant rise of the powers for the Aborigines Protected Board. The newly added powers by this Act helped the Aborigines Protected Board in assuming the parental rights of the children belonging to the aborigines and in so doing they also had the power to remove the children from the lawful custody of their guardians or their parents and also most importantly without the orders of the Court and treat the children so absconded as being neglected under the provisions of the Neglected Children and Juvenile Offenders Act 1905 . Again, the Aborigines Protection Amending Act 1915 also removed the provision for the Board, which was previously subjected to the Apprentices Act 1901 for apprenticeship of children and in so doing the Aboriginal apprentices’ conditions were reduced.
Impact on access to justice
Cunneen and Schwartz worked with the significant effort and identified that there are legal needs for the Aboriginal people and they are also facing barrier in accessing the justice. Again, there is over representation of the fact that the Aboriginal and Torres Strait Islander people make the most of the prison population and also the fact that the women of this Aboriginal and Torres Strait Islander people is seen to be the particular victim of the violent crime and not only the women but it is also the fact that the younger generation are also detained as juveniles.
Again, it is identified that this these categories of people face several barriers while accessing the justice, due to the fact that they have the social disadvantage and also the cross-cultural issues which also includes the gratuitous concurrence along with the kinship which often arises in those areas where the customary law still prevails, but this prevalence of the customary law is according to their own will and wishes. Next is the remoteness combined with the issues relating to the language where many people still today do not consider and do not speak English as their first language so, they often require the interpreter while accessing the legal process.
The Law Council of Australia in 2009 stated Aboriginal and Torres Strait Islander legal service providers (ATSILS) to be most appropriate in providing services, culturally to the Indigenous Australian peoples and in 2010 , Commonwealth Department of Finance and Deregulation undertook a Strategic Review of Indigenous Expenditure, stated and acknowledged that the services so provided by the Aboriginal and Torres Strait Islander legal service providers (ATSILS), must be uplifted and maintained.
Significance of international human rights law
The time when the Australian Constitution, was drafted, it was overt discrimination based on terra nullius, i.e. the land is not owned by anyone and hence, Aboriginal and Torres Strait Islander Peoples, was excluded or rather did not have any special significance and for many years the Constitution of Australia remained silent on this aspect and did not provide any recognition for the Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia, and hence it can be said that the Constitution did permit and anticipate racial discrimination.
Again, there is a complication as to the Australia’s federated system of government. It is the responsibility of the Commonwealth under the International law for the human rights of Aboriginal and Torres Strait Islander Peoples to provide policies as well as legislations, which only mean that this kind of national action will have the requirement of both the agreement and the cooperation of nine separate governments.
But, the United Nations Declaration on the Rights of Indigenous Peoples provides the minimum standards of life for the sustenance with well-being and dignity, but the Australian Government, do not consider the Declaration to be legally binding, since according to the Government, it lacked the legal gravity or status like other international covenants or treaties. So, as there is the lack of the coordinated policies, the execution and implementation of laws is not evenly distributed throughout .
Knowledge and understanding relevance to advancing reconciliation
Commonwealth government announced the consultation process in order to consider the adequacy which is borne out of the human rights for the indigenous people in Australia. A constitutional reform is must have in the face of the current scenarios, since it is important to provide the protection for the Indigenous peoples and they must also be ensured protection. So, before the reconciliation is sorted, the major issues must be identified, in order to provide support and thus implement and execute the protection towards them.
The six main areas to reconcile or to create reform is identified by the Australian Human Rights Commission, in Social Justice Report 2008 , and that includes the Commonwealth government to create a formal declaration for the implementation and thereby execution of the UN Declaration on the Rights of Indigenous Peoples and in so doing the Government must proceed further to pass an enactment under the name Human Rights Act and make that legislation applicable for all the people of Australia. The Commission further suggests to create a recognition for the indigenous people and to take a step forward to remove any sort of discrimination and in so doing, must ensure the equal treatment.
Furthermore, the Commission suggests to establish a National Indigenous Representative Body for full participation of Indigenous peoples in process of the decision making which affects the interests and in so doing there must be the framework which will provide the negotiation and also the agreement and will then refer to the reconciliation for the matter of unfinished business for the Indigenous peoples. So, the political leaders along with their parties must recognise and also realise that reconciliation is important between Aboriginal along with the non-Aboriginal communities in Australia, in order to avoid the injustice shown since ages to the Aboriginal people.
Conclusion
Aboriginal people is comprised of the diverse Aboriginal nations, with their very own culture and also traditions with which they are living in the mainland of Australia and also in and around the continent. Torres Strait Islanders are considered to be of Melanesian origin and both the Torres Strait Islanders and the aborigines are referred to as the indigenous people.
For facilitating the access to justice, and also to create the impact on the lives of the Aboriginal and Torres Strait Islander Peoples, the historical barriers which created the hinder on the progress of it needs to be addressed and in order to do that the first step to be incorporated is the constitutional reform which will remove all the negativity that affect adversely, the Aboriginal and Torres Strait Islander Peoples in the form of various sorts of discrimination which have affected them since a very long time. The Australian government utilised the idea of the best effort, on the youngster to expel Aboriginal kids from their families and groups.
As the access to equity for Aboriginal and Torres Strait Islander Peoples is perplexing and multidimensional, the Governments relied on legislation to accomplish the idea to bring the youngsters inside the standard culture with a specific end goal to obliterate Aboriginal culture. As laid out plainly in the Declaration, Aboriginal and Torres Strait Islander Peoples must have the capacity to practice self-assurance. From one perspective, the youngsters were focused on, in view of their ability for adjustment and then again, the equity strategy must be facilitated keeping in mind the end goal to guarantee that Aboriginal and Torres Strait Islander Peoples can get to equity, since, the shot of survival for their group was thin, in comparison to the prevailing inhabitant populace in Australia.
The procedure started as right on time when the primary settlements were built up as Aboriginal women and youngsters were seized for financial and sexual abuse. While keeping up the social foundations which provides the legitimate and good structures, the protectorate framework was built up to guarantee them security, which can then be considered to be the role of the government as parens patriae, when the ethnic issues is the main concerning area.
References:
Aborigines Protection Act 1909 http://www.austlii.edu.au/au/legis/nsw/num_act/apa1909n25262.pdf
Aborigines Act 1969 https://www.legislation.nsw.gov.au/acts/1969-7.pdf
Aborigines Protection Amending Act 1915 http://www.austlii.edu.au/au/legis/nsw/num_act/apaa1915n2321.pdf
Neglected Children and Juvenile Offenders Act 1905 http://www5.austlii.edu.au/au/legis/nsw/num_act/ncajoa1905n16368.pdf
Apprentices Act 1901 https://www.legislation.nsw.gov.au/acts/1901-41.pdf
Allison, Fiona, Melanie Schwartz and Chris Cunneen, “The Civil and Family Law Needs of Indigenous People in Western Australia” [2014] SSRN Electronic Journal Legal and constiutional references committee: 15/07/2009 : Access to justice(July 15, 2009)
ParlInfo Search Australian Government, Strategic review of indigenous expenditure (February 2010) http://www.finance.gov.au
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