Topic 8: Indigenous Australians & the Law Podcast

Speaker 1 Hello, everyone and welcome to topic a podcast of law on mine too. My name is Jennifer and I will be your lecturer for Speaker 2 propagate indigenous Australians and the Speaker 1 law. Essentially, this podcast will explore the history of colonization in the impacts. This continues to have on indigenous Australian people. Particularly when I looking at access to Justice and Notions like equality and equity. Under our legal system to the aim of this podcast is really not to detract from your readings. But rather help contextualize some of the key points that were raised it is therefore, highly recommended that you complete, all your readings, which should take approximately four hours to complete with some note-taking amongst that. But before we go into the podcast, I would like to acknowledge the traditional custodians of the lands and pay my respect to the elders, both past and present. I'd like to acknowledge the Raging none of well, funded by the MPAA and There are people who are the Speaker 2 traditional owners and custodians of the land through which CSU campuses are Speaker 1 located and extend that Speaker 2 respect to all allow Aboriginal and Torres. Strait Speaker 1 Islander people who are listening to this podcast with us today. So as we go into and learn about Australia's Colonial history and the Legacy that this carries for indigenous people, Before we start to explore that, what's really important to understand is toaster philosophy. When I looking at, in your mind, when I'm gonna now, this concept is very much a larger concept and it's a way of life. So, Charles started means the wisdom of respect me knowing how to live in a world worth living. In it represents where I drew cultural values pertaining to the relational development of knowledge. So essentially what we're talking about here is knowledge that really is put to work with the betterment of others learning that he's done. Done through working and walking alongside others in communities. And it's about this concept of Truth telling, and that comprises five elements. So it looks up being respectful being polite, being gentle, which can sometimes be referred to as me inquire to go slowly and to show honor and just really sit in the all these faces is truly to embody our ethos of you tomorrow. And I'm gonna so, with this, ethos in mind, I know I want you to start to think about Australians, calling all history and the Legacy and impact this has on contemporary relations today for indigenous, people and interaction, real Western legal system, So we know that the arrival of the British settlers, there was really no official recognition of indigenous Australian people for the rights to traditional country and there was this concept of Terra nullius, which emerge which we know men and to your vacant land. This soon became a legal fiction and that it was determined that the land was not empty at the time. When the British discovered Australia, Australia actually had an already existing culture and an existing system of governments. However, unfortunately, this was not recognized at the time of arrival of the British. What is interesting to note here is that the very concept of property line for the British is very different to that of indigenous Australian Speaker 2 people. Speaker 1 So for the British property is very much a commercial tangible asset. They could be sold or used Speaker 2 for practices, like Speaker 1 farming past releases, and so on. And title to learn is very much interested to the crown. Property, however from ditions big bullies, right difference? Land itself is sacred and is the mother God. The land provides Speaker 2 indigenous people with Speaker 1 food shelter water and spirituality to the ancestors. So being removed Speaker 2 and dispossessed from Speaker 1 their land. This then man isolation from Community isolation. And lots of culture along with disruption to their Speaker 2 social economic and Speaker 3 cultural structures. Speaker 1 And it was with this disruption that we then started to see state governments and ask specific colleges policies and legislation that really regulated the lives of indigenous Australian people in all areas of their life. And this was enabled through section. 51 Speaker 2 sub section. 26 of our Speaker 1 Constitution, which gave the power to the states in that, it really excluded the power of the Commonwealth to make laws your respect to indigenous people. And the states were the Speaker 2 only Speaker 1 people able to enact legislation that concerned indigenous people. So this really is where we started to see key areas of government policies and marriage across the states and territories. So first thing we had in our protection and this started at the time of colonization and went through to the 1890s and this really was a period of exclusion from country and denial of access to town. Speaker 2 And so what we saw, he were indigenous, people starting to live on the fringes of Speaker 1 town and not being allowed to go in. And some of you may have seen, or you may know in your own Community street names like Boundary Street. And these are all streets designed to segregate indigenous Speaker 2 people from going into particular areas. So it was almost like this invisible boundary was put in place to create this Speaker 1 divide. As a result of all this protection, legislation emerging, we did start to see a lot of resistance come about and Speaker 2 this was through the frontier wolves. Speaker 1 Not just from Speaker 2 the indigenous people but also Speaker 1 the use of force by the British as well. And so this was part of the logic behind the introduction of protection protection legislation which really excluded indigenous people from European Society. So from here, after protection, legislation was emerged Speaker 2 You can also appear to Speaker 1 segregation from the 1890s to the 1950s, which meant indigenous Speaker 2 people were excluded and now for silly emissions and Reserves. Speaker 1 It was during this period that the Australian Speaker 2 Constitution also include indigenous people from our national Speaker 1 census. However, we know this was Speaker 2 unlike to 1967 when the majority of people voted yes Speaker 1 to include indigenous people in our national census. From the 1950s to the 1960s appeared over. Simulation then emerged it was this presumption. That all Australians would really Speaker 2 adopt a Lifestyles and beliefs of white Anglo-Saxon Australian people. Speaker 1 From this period of assimilation, Speaker 2 we then moved into periods of integration and there was Speaker 1 just continued expectation. That all Speaker 2 Australians would adopt Lifestyles and beliefs of anglo-saxon Speaker 1 Australians. And there was some retention of cultural practices that were allowed during this period. So it wasn't until the 1960s that the period of self-determination and self-management started to emerge. Speaker 2 And this is where we start to see more visible, political activism for individual and Collective rights of indigenous people. And Notions like reconciliation, And it was in 1992 that we counsel for the average on reconciliation was actually established. Speaker 1 And the Very aim of this Council was really to Speaker 2 interesting disadvantages that indigenous people and their communities were experiences, experiencing, Speaker 1 sorry, and established economic Speaker 2 independence. And so, this is where we start to see reports like closing the Gap. I'm about to try and address the disparities that existed between indigenous and non-indigenous Australians people in areas like health. Health education, employment social support, Etc. What's important to note though, is that this period of reconciliation can be quite forward. Speaker 1 In terms of actually Speaker 2 understanding, what is wanted when I look? When were talking about reconciliation and there's questions around whether they should be done by way of the tree, Speaker 1 whether we should actually have a waste of Parliament. And will this actually Speaker 2 achieve reconciliation? What's important to know is that there really is no one understanding of what people would like to see, and each Asian group have different views. On reconciliation and what that means to Speaker 1 them. This is really important to understand. Understand it when you start to work out, or if you are working in community, understanding, that is really important. And understanding reconciliation. It's not only important to understand the differences Speaker 2 in pure points but also the Speaker 1 across the different rules and customs of each Nation group and the variances that exist in languages as well. So if we're looking at language and communicating and Community, Speaker 2 when we're talking, About this and what is appropriate, communication? Speaker 1 It's important to know that language in history and not Speaker 2 neutral. They are shaped by social, cultural and political perspectives. Speaker 1 And so there are a range or to Rally the terminology guides that are out there that you may have seen across other subjects. Speaker 2 He in your studies at Sea issue that give you guidance on what is appropriate, and what is Speaker 1 not appropriate terminology in Speaker 2 community. And I'm not going to go into these today, but essentially The main Speaker 1 points. What would like you to take Speaker 2 away? Is that language is contested and there's really no one. One single appropriate way to refer to indigenous Australian people or First Nation Australian people because each Speaker 1 Community will have their own preferences to how they would like to be known as Speaker 2 so. For example, some communities don't like the term indigenous Speaker 1 Australians and they prefer Aboriginal and Torres Strait Islander people. Speaker 2 Others. Prefer it the other way around. Speaker 1 It's really about understanding the preferred technology Speaker 2 that exists in your community and asking Elders what they would like when you are yawning with them. Speaker 1 Particularly when it involves sensitive legal matters, But alongside this, it's just important to remember that indigenous people alone are not a Speaker 2 homogeneous group. And so ideally where you do know the language group on the nation group of that Community Speaker 1 use that terminology. Speaker 2 So for example, I am based here on the beautiful beer by country. So when I'm talking to the elders here, I introducing them to them. I refer to them as the Speaker 1 Bill of Rights Community Elders, not the local indigenous elders. Speaker 2 So the key Point here really is to always refer specifically to the relevant Nation group and understand that there is no one sir, we're terminology that is appropriate for everyone and that language does change over time. So, what may be acceptable? Now may not be acceptable in the future and just being Mindful and respectful of this when you are working in community and not using a gas exclusionary language that really offers to us than them. Speaker 1 So, as I mentioned earlier, land takes on very different meanings for indigenous Speaker 2 people. And their Community is Speaker 1 compared to that of the British colonizers to for indigenous. People land is Central to their culture and their Speaker 2 identity and it's very much the source of Law and their spirituality. Despite there being lodged forms of resistance over land, it really wasn't until the early 1970s and Indigenous. People first brought legal challenges to the Crown's title to land in Australia. Speaker 1 and it was following on from One of the leading cases around native title which was near a problem Annabelle. Grow Speaker 3 Which Speaker 1 led to Native title, and that was Speaker 2 a decision of Marlborough in 1992. So, here in this case, the high court recognized a group or Torres, Strait Islander people, which were led by an email through and they acknowledge the traditional rights of the Miriam people to their Speaker 1 land. The Speaker 2 court also held that native title did exist for all indigenous people. And so this Landmark Speaker 1 decision really gave Speaker 2 rise to important native tape title. Ocean which we saw come about the following year and it rendered. Terra nullius, Speaker 1 a legal fiction. Speaker 2 What's also important about this decision is that it's not only decision of law but a revision of history in terms of its legal implications during the time of colonization, when the Europeans invaded, they didn't recognize indigenous people social Speaker 1 structure, or then land tenure. Speaker 2 And so, with through the motto decision, this very much overturned. This disbelief Speaker 1 and now how we see and talk about our Speaker 2 history. So we're no longer recognize Terra nullius is a fact and it was in these case at the high court. Actually recognize Speaker 1 that indigenous. People did Speaker 2 have rights to land and social legal systems did exist prior to European Europeans colonizing in Australia and this should have been recognized at the time of colonization but Honestly, it wasn't. In order to prove native Speaker 1 title, this is an ongoing Speaker 2 battle. So it must be shown that indigenous. People have a continuous and unbroken connection to that country from colonization. So indigenous people really bear the burden of proving all the elements necessary to establish a claim or native title as defined in section 223 of the Speaker 1 art. Speaker 3 And I must Speaker 2 show that they possess communal group or individual rights, and interest in relation to land orders, Speaker 1 I'm tradition under traditional is acknowledged and Speaker 2 Customs, which are reserved by them and by those laws and customs, they have a connection with the land or water. They are Claymore Additionally, these native turtles Arts must be recognized by the common law, however, when whether they can be recognized is still a question of law. Speaker 1 so, when we're thinking about Native title and recognizing customary practices, While mabo was a landmark decision in that it recognized that Speaker 2 indigenous Customs, did predate European colonization. Australian law has really stopped short of acknowledging indigenous costumes as a system of law in its own right. And there is significant judicial reluctance to embrace customary law, but in some Speaker 1 cases it is, it has also been accepted. Speaker 2 So one case he really is a decision of how I was against Jimmy Lera 2003. And he defendant was actually found guilty for engaging in sexual behavior, even minor, which was against Western law, Speaker 1 but he it was actually a customer tradition Speaker 2 and so the discussion was made in this case around the recognition of Aboriginal customary laws and practices and how they must be consistent. Stir with international human rights standards and should be determined on a case-by-case basis. In all aspects of the recognition process particular attention should be paid to the rights of women and children Speaker 1 and the right now to the subject and the right. Really not to be subject to inhumane. Cruel, or unusual treatment or punishment. I'm International international law. But what's important to note here is that Customs or lying there, a set of rules which are observing a living a particular group. They don't have the same rigidity when we're looking at our laws and policies Customs were really a way of life and much of this strength lies in their Speaker 2 flexibility, so as light and circumstances change, so do the rules and so there is his argument Speaker 1 that there should be no reason why we've Speaker 2 consultation and education. Customs cannot evolve To accommodate, human lives of genders. Speaker 1 With it. and I guess then if you look at customary Speaker 2 practices and the acceptance, all of this, in our Western legal system, Speaker 1 this has occurred in some indigenous Speaker 2 sentencing for quotes across Australia. Speaker 1 And one example, where customary Speaker 2 law practices coexist, a longtime Criminal Courts is in the worm bull Circle sentencing court in camera. So this court is very much, a specialized School in the ACT, my indigenous people can have their sentencing matters her by magistrate alongside a panel of respected Aboriginal and Torres Strait Islander elders. And so in a CT here, there are two sentencing court. So you have dick around me, sentencing court, adults, and the ramble sentencing court for young people, When we're looking at the Wilder, the children Circle sentencing court. This is very much an alternative model of sentencing for indigenous young people. Speaker 1 And it's very much, a type of restorative Speaker 2 justice approach that aims to provide culturally relevant, and effective sentencing options. For young Engineers. People between the ages of 10 to 17 years of age, which incorporate the elders perspective and cultural aspects. Into the children's Speaker 3 Court. Speaker 1 And I guess the very aim of Speaker 2 this core, the Warren report Speaker 1 is really to write a rehabilitation pathway Speaker 2 that includes the young person. Their family the magistrate elders and specific government and Community Services to all come together to design to design an individualized plan. The plan, the goal plan being to tackle, the issues that really are contributing to that young person, engaging You're not criminal behavior in the first place. And the plan online, it could be 3 6 9 or 12 Speaker 1 months and it could involve aspects like looking at education, employment or health. Speaker 2 But the idea is upon completion of the plan, the charges would then be chopped. And so the young person will be sentence with the completion of the plan, being considered as part of the sentencing process. Speaker 1 And so the key Point here is Speaker 2 understanding this restorative justice approach is really important, particularly on, when we do start to look at Concepts like self-determination and Reconciliation for indigenous people and whether or not this is actually being achieved through initiatives. Interventions governments have already introduced and so here, I want you to start thinking about in the Northern Territory, emergency Speaker 1 response and whether or not that Speaker 2 was a good initiative or intervention, you could say into the lives of indigenous people and auntie So blurry background just to help you understand how the no mentor to Emergency Response can be behalf. The intervention came from the little children, as I could for which published in June, 2007, this report was commissioned by the Northern Territory as a board of inquiry into the protection of Aboriginal children from sexual abuse. So, in this report, and I noted, that there were high rates of violence in some indigenous communities and entity. There was a lot of neglect. Orphanages children which had reached crisis level. There was an issue of urgent National significance. By both the Australian and Northern Territory government, which required indigenous children being protected from both sexual abuse and neglect. And it looked at factors like overcrowded housing, arcologies, like with meaningful employment and other factors. And so from this report, 97 recommendations with them put forward. Of these nannies are recommendations so I need to have been Speaker 1 implemented. And it was I guess from Speaker 2 this report that did then prime minister John Howard implemented. The Northern Territory emergency response. Speaker 1 It was very much a Speaker 2 legislative response which was governed under the Northern Territory, emergency response act 2007. Speaker 1 And so this implemented Speaker 2 a task force which had oversight of 12 initiatives. So some of these initiatives included, undertaking energy health, check School indigenous children. Acquiring select certain selected communities, prohibiting alcohol and pornography for select your communities, and undertaking species, specific changes for welfare. However, in order to do this, their powers had to be increased. And so we started to see other jurisdictions arrived in the Northern Territory. Lackey AFP, and the Army deployed, the logistics and surveillance reasons. We also started to see an increase in rent. At market prices, which meant then meant that, a lot of people are priced out of the market, as it was no longer, there was no longer affordable housing, which then became another issue. Speaker 1 To essentially what you're starting to hit see, is Speaker 2 that with this legislation and only created more power and control over the lives of indigenous people. And if you think of this in the context or our Legacy of colonisation, you can start to now see how this control and domination continues in the lives of indigenous people today. As we know though there has been a lot of backlash to this legislation and subsequently has been amended full trans by both the ride and Gillard government's and in July 2012. It was revealed by the Gillard government and replaced by the stronger Futures in the Northern Territory act 2012. And so we've after the implementation of the intervention, we then saw responses from indigenous communities, as well and Report started to Speaker 1 emerge, which saw Speaker 2 strategies, look at short-term three to six months, emergency responses and more long-term development Speaker 1 plans. but, The key point being, Speaker 2 when they put together, a long-term development plan was that the Australian another territory government should jointly develop the plan in consultation with Aboriginal and Community Speaker 1 organizations. And so what they said was that essentially Speaker 2 any meaningful response, must be informed and led by local Aboriginal communities. As it is only by strengthening the capacity of families and communities that we can actually protect Actual children. From the problems of child abuse, and that's the only way it can be solved. So here what we're talking about really is place-based initiatives which are generated by the community which focus on play Space challenges working with everyone working together as one community and giving the community the self-determination to make decisions for themselves that Speaker 1 effect. Speaker 2 That affect them on a day-to-day basis. And we know this has not always been the case for indigenous people. And so when we're talking about this notion of self-determination and putting and suggesting initiatives like white space in each of these Way, community are really the drivers and leaders of this community of these initiatives, where they're tackling the day-to-day issues, We really need to consider first. Well, Women, talking about self-determination, we need to look at at International Convention, so we need to look at the charter of the United Nations. 945 Article 1 Section 2, which looks at the principle of equal rights and self determination on people. We also need to look at the United Nations Declaration on the rights of indigenous people. Mostly article 3 where it says, indigenous people must have the right to self-determination. But that showed that Rod, definitely, they can freely, determine a political citizen, really bitchy today, economic, social, and cultural development. And so this is your really relevant when my starting to say, conversations in the medium, also, contempt more. So at the moment around whether or not, we should have a voice to Parliament and whether or not we should have a referendum and so it's through If through the voice to Parliament which is came from the restatement, from the heart Speaker 1 that they are Speaker 2 asking for two things, a call. The first thing being, I call for a constitutional amendment to incorporate a voice to Parliament. So that being an advisory First Nations, representative body, essentially would influence and participate in the development of commonwealth law and policy regarding indigenous manners. And the second development would be the establishment of a Mac erotic mission of responsibility for developing trading, making processes and just bought a national truth-telling process about past abuses and other significant Speaker 3 manners. Speaker 2 But I guess what's important? He really Speaker 1 is, Speaker 2 is to understand that not all indigenous people in community agree with the voice of Parliament Speaker 1 and Speaker 2 not all communities. A nation groups. Believe this is the microphone most appropriate way to move forward. So there is a whole range of differing opinions about how to best go about Speaker 1 this and it's important Speaker 2 to be mindful that that when they're thinking about Concepts like self-determination and more, Speaker 1 so reconciliation have to actually achieve that in a meaningful Speaker 2 respectful and dignified way. So that concludes the podcast for topic. A if anyone has any questions Options. Please bring them to the tutorial where I'm happy to raise them. The tutorial questions are now available for you in the discussion board. So please, please come to the shop prepared to engage in these conversations. Thank you. And I look forward to seeing you all at the next tutorial. Options. Please bring them to the tutorial where I'm happy to raise them. The tutorial questions are now available for you in the discussion board. So please, please come to the shop prepared to engage in these conversations. Thank you. And I look forward to seeing you all at the next tutorial.