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Queen's University
 

Multiculturalism Policies in Contemporary Democracies


Australia

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TOTAL SCORES
Year: 1980 2000 2010
Scores: 1 4.5 6



1. Recognition of land rights/title

   Yes.

SCORES
Year: 1980 2000 2010
Score: 0 1 1

Evidence:

  • The Aboriginal Land Rights (Northern Territory) Act 1976 was the first attempt by an Australian government to legally recognize the Aboriginal system of land ownership and put into law the concept of inalienable freehold title. When the law was passed, previous Aboriginal reserves became Aboriginal land. The land was granted without the need for a land claim.
  • In 1981, the Pitjantjatjara Land Rights Act was passed by the State Government of South Australia. Under section 18 of the act, “All Pitjantjatjaras have unrestricted rights of access to the lands” granted by the governor.
  • In David Alan Gerhardy v. Robert John Brown (1985), the Australian High Court described the Pitjantjatjara Land Rights Act as “a special measure for the purpose of adjusting the law of the State to grant legal recognition and protection of the claims of the Anunga Pitjantjatjara to the traditional homelands on which they live.”
  • Since the 1980s, all states in Australia have enacted land and title legislation that deals with Aboriginal land rights.
  • The Native Title Act 1993, a Commonwealth statute, came into operation in 1994 to address the High Court decision in Mabo v. Queensland (No 2) (1992). In Mabo, the court rejected the doctrine of terra nullius, and held that the common law of Australia recognizes continuing title held by indigenous peoples to their traditional lands in accordance with their traditional laws and customs.
  • The main purpose of the Native Title Act 1993 is to recognize and protect native title. The act provides for the recognition of pre-existing rights to land and waters, and addresses the acts that impact native title and the resolution of claims for compensation.
  • In 1998, however, the Native Title Act 1993 was amended under the Howard government through the Native Title Amendment Act 1998. This new legislation put many restrictions on potential claims by Aboriginal people.

2. Recognition of self-government rights

   Partial, but very limited.

SCORES
Year: 1980 2000 2010
Score: 0.5 0.5 0.5

Evidence:

  • Aboriginal peoples in Australia exercise limited, local self-governance through community-based governance councils. Aboriginal Land Councils are incorporated, statutory authorities that represent Aboriginal peoples and Aboriginal landowners across Australia. Aboriginal land councils manage a range of support services delivered at the local level to their communities. These services include housing, legal affairs, employment, training, and property acquisition and management.
  • Aboriginal peoples are involved in the election of members to land councils. In each state and territory, land councils have been established to provide representation and organization of native title. For example, in the Northern Territory, the Aboriginal Land Rights (Northern Territory) Act 1976 established Aboriginal land councils to act as agents for traditional Aboriginal owners on land matters.
  • In Western Australia, Aboriginal organizations may draft and enforce bylaws on Aboriginal reserves and other Aboriginal lands under the authority of the Aboriginal Communities Act 1979. Authority is limited to areas such as the regulation of admission of people and traffic; regulation for control of traffic; regulations governing noise, use or supply of alcohol and other substances, firearms and other weapons, litter and rubbish dumping.

3. Upholding historic treaties and/or signing new treaties

   No.

SCORES
Year: 1980 2000 2010
Score: 0 0 0

Evidence:

  • Neither the Commonwealth Government of Australia nor the British Crown has entered into a treaty with the indigenous peoples of Australia.
  • There have been some attempts in recent decades to explore the idea of a treaty between Australia and the indigenous peoples. In 1979, until 1983, the Aboriginal Treaty Committee (ATC) was established as an independent body to pressure the Australian government to enter into a treaty, covenant or convention with Aboriginal people and Torres Strait Islanders.
  • In 1983, the Australian Senate Standing Committee on Constitutional and Legal Affairs, in its report “Two Hundred Years Later,” rejected the idea of a treaty because it believed that the Aboriginal peoples were not a sovereign entity and so they could not enter into a treaty with the Commonwealth. The Standing Committee was, however, in favour of a compact that could be eventually inserted into the constitution by referendum.
  • In June 1988, during the bicentennial celebration of British colonization, then Prime Minister Bob Hawke called for a treaty to be negotiated between the Aboriginal people and the Government of Australia. The Aboriginal Sovereign Treaty ’88 campaign accompanied this, calling for the recognition of Aboriginal Nations and Peoples’ sovereign rights, and ownership of Australia, and for the Commonwealth Government of Australia to enter into a treaty with Aboriginal sovereign nations through the mechanisms of international law. Despite this, the issue faded from the federal government’s agenda (Brennan et al. 2005, 15).

4. Recognition of cultural rights (language, hunting/fishing, religion)

   Yes, but largely hunting and fishing, as well as religious, but not language.

SCORES
Year: 1980 2000 2010
Score: 0.5 0.5 1

Evidence:

  • The Aboriginal Heritage Act 1988 was enacted in South Australia to protect Aboriginal culture and heritage. Specifically, the act protects all Aboriginal sites, objects and remains in South Australia that are of significance to Aboriginal tradition. Moreover, the South Australian State government has developed a “Cultural Inclusion Framework,” designed to assist government agencies develop services that are culturally inclusive and thus more accessible to Aboriginal people.
  • With regard to language, there is no Australian legislation that addresses or deals with the right to the use of an indigenous language. Rather, Aboriginal languages are dealt with as a matter of policy.
  • The Australian government supports indigenous languages through the Maintenance of Indigenous Languages and Records program. The program supports the sustainable development of an active network of community-based indigenous language centres and language organizations, language projects and policy initiatives such as the National Indigenous Language Survey.
  • In 2009, the Australian government announced the establishment of the National Indigenous Languages Policy. This new policy seeks to create awareness, aid endangered languages, strengthen pride in identity and culture through language revival, and support indigenous language programs in schools.
  • Under the National Parks and Wildlife Conservation Act 1975, Aborigines are afforded the right to “the traditional use of any area of land or water for hunting, for food-gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes” (section 70.1). In addition to this commonwealth statute, the states and territories have laws protecting Aboriginal hunting rights, as well as, in some instance, the care and control of flora and fauna on the land granted to them (see Aboriginal Land Claims Bill 1983 for Victoria, for instance).
  • In terms of fishing rights, numerous commonwealth, state and territorial laws accommodate Aboriginal traditional fishing practices. For example, the Torres Strait Treaty of 1978, an international treaty between Australia and Papua New Guinea that clarifies the boundaries between both countries, as well as jurisdiction over the seabed and fisheries in the Torres Strait, and the legislation to implement the treaty, provide for “traditional fishing.”
  • In the state of Western Australia, the Fisheries Act 1905 allows a person of Aboriginal descent to take, in any waters and by any means sufficient, fish for food for himself and his family, but not for sale; this right may be restricted by the power of the governor, however.
  • Similarly, in Queensland, the Fisheries 1976 Act exempts from prosecution any Aboriginal or Torres Strait Islander who at the material time is resident on a reserve from the taking of fish or marine products for private purposes.

5. Recognition of customary law

   Partial, but very limited.

Evidence:

SCORES
Year: 1980 2000 2010
Score: 0 0.5 0.5
  • Generally, only a very limited breadth of acknowledgement of indigenous customary legal practices exists in Australian law, despite evidence which suggests that Aboriginal societies continue to practice their legal traditions (see the report of the 1986 Australian Law Reform Commission entitled The Recognition of Aboriginal Customary Laws).
  • For nine years, beginning in 1977, the Australian Law Reform Commission (ALRC) studied whether it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aborigines—generally or in particular areas or to those living in tribal communities only. The study culminated in the 1986 report, The Recognition of Aboriginal Customary Laws.
  • The ALRC’s 1986 report outlined that, with very limited exceptions, Aboriginal customary laws have never been recognized by general Australian law. It reported that customary laws were a significant influence in the lives of many Aborigines. More importantly, however, the report recognized that there was no one “authentic version” of customary law (ALRC 2010).
  • Under current legislation, such as the Aboriginal Communities Act 1979 of Western Australia, the Council for Aboriginal Communities can make its own bylaws, which may be implicitly customary. Moreover, the Aboriginal Land Rights (Northern Territory) Act 1976 allows claims to be made by indigenous peoples to the Crown on the basis of traditional concepts of ownership.
  • The 1992 decision in Mabo represented the recognition of indigenous customary law. In its decision, the High Court recognized the legal force of customary indigenous rights to land where those rights continue to exist.
  • In 1995, the Office of Indigenous Affairs of the Department of Prime Minister and Cabinet published the report, Aboriginal Customary Laws: A Report on Commonwealth Implementation of the Recommendations of the Australian Law Reform Commission. In the report, the government indicated that there had been partial implementation of some of the recommendations (ibid.).

6. Guarantees of representation/consultation in the central government

   Partial.

SCORES
Year: 1980 2000 2010
Score: 0 1 1

Evidence:

  • From 1990 until 2005, the Aboriginal and Torres Strait Islander Commission (ATSIC) was the national government body for indigenous policymaking and program/service delivery. ATSIC was abolished under the Howard government through an act of parliament in 2005.
  • Previously, Aboriginal and Torres Strait Islanders from across Australia elected 35 regional council members as well as a national Board of Commissioners. This organization also entailed an administration, which was headed by a chief executive officer.
  • Since its abolition, the Office of Indigenous Policy Coordination (OIPC) has assumed the functions of the ATSIC. The OIPC is the Australian government’s division within the broader Department of Families, Housing, Community Services and Indigenous Affairs. The office acts as the primary source of policy advice on indigenous issues to the minister and the coordination point for a whole-of-government approach to the delivery of programs and services for Australia’s indigenous population.
  • Under the Government of Australia’s Attorney-General’s Department, the Indigenous Policy and Service Delivery Branch is responsible for strategic advice on indigenous law and justice matters, as well as contributing to the whole-of-government indigenous policy.
  • A new, national representative body, designed to replace the Aboriginal and Torres Strait Commission, has been established and is expected to be fully operational by January 2011 (Anaya 2010, 9, para. 13).

7. Constitutional or legislative affirmation of the distinct status of indigenous peoples

   No.

SCORES
Year: 1980 2000 2010
Score: 0 0 0.5

Evidence:

  • Australia has never explicitly affirmed the distinct status of the Aboriginal peoples and Torres Strait Islanders as indigenous peoples with indigenous rights.
  • In 1967, a national referendum amended the constitution to remove text that discriminated against Aboriginal and Torres Strait Islanders. Thus, indigenous people were included in the national census, and the Commonwealth Government gained the authority to legislate on matters related to indigenous people (Anaya 2010, 8, para. 9).
  • The Motion of Apology to Australia’s Indigenous Peoples (the “National Apology”), was introduced by Prime Minister Kevin Rudd and unanimously passed by the House of Representative on 13 February 2008. The Australian federal parliament apologized for “the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss” on Aboriginal and Torres Strait Islanders (quoted in Anaya 2010, 8, para. 11).

8. Support/ratification for international instruments on indigenous rights

   Partial.

SCORES
Year: 1980 2000 2010
Score: 0 0 0.5

Evidence:

  • Australia has not ratified ILO Convention 169 Indigenous and Tribal Peoples Convention, 1989.
  • Australia was among the four countries that voted against the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP). In April 2009, Australia reversed its position and endorsed the UN DRIP. This declaration is non-binding and does not impose duties or obligations on the Australian government or Crown.

9. Affirmative action

   Yes.

SCORES
Year: 1980 2000 2010
Score: 0 1 1

Evidence:

  • Under section 3 of the Equal Employment Opportunity (Commonwealth Authorities) Act 1987, “members of the Aboriginal race of Australia or persons who are descendents of indigenous inhabitants of the Torres Strait Islands” are distinguished as a “designated group.” Under this law, programs and recruitment matters are to be designed to eliminate discrimination and promote equal opportunity for designated groups.
  • Under the Commonwealth Racial Discrimination Act of 1975, special measures are permitted, as a form of affirmative action, to make distinctions based on race in hiring practices. The law permits that groups that have been traditionally denied human rights to receive special treatment to redress the situation.
  • State legislation targets Aboriginal people for positions in the public service. For example, the Tasmanian State Service Act 1984 has identified that Aboriginal and Torres Strait Islanders are a designated “Equal Employment Opportunity” target group. Under this law, state agencies are required to recruit for “Aboriginal Identified Positions” where the position description will have an essential requirement of Aboriginality.
  • Affirmative action for Aboriginal people is a matter of policy regarding admissions to universities. Many universities have stated that they will introduce positive actions to explicitly recruit Aboriginal individuals.

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