Australia

   
TOTAL SCORES
Year: 1980 2000 2010 2020
Score: 1 4.5 5.5 6

 

1. RECOGNITION OF LAND RIGHTS / TITLE

    Yes.

   
Recognition of Land Rights/ Title Scores
Year: 1980 2000 2010 2020
Score: 0 1 1 1

Evidence:

  • In 1966, the South Australia government passed the Aboriginal Land Trust Act, which allowed for Indigenous ownership of land. The legislation, however, did not recognize any form of common law native title (Scholtz 2013).
  • 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.
  • In 2016, the Kenbi Land Claim (first lodged in 1979) was settled. 80% of the lands claimed (~52,000 hectares) were granted as Aboriginal land under the Aboriginal Land Rights Act. The remaining 20% of the claimed lands will be transferred as freehold territory to be used by the Aboriginal claimants.
  • A second land claim – the Wickham River Land Claim – was also finalized in 2016.
  • 42 land claims remain outstanding and are still under negotiation.
 

2. RECOGNITION OF SELF-GOVERNMENT RIGHTS

    Partial, but very limited.

   
Recognition of Self-government Scores
Year: 1980 2000 2010 2020
Score: 0.5 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 .
  • 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.
  • Some state-level policy is beginning to support Aboriginal self-government and/or self-governance. In South Australia, the Aboriginal Regional Authorities policy has created a framework for government recognition of Aboriginal political collectivities. In Victoria, the government has placed Aboriginal self-determination as a driver of Aboriginal affairs policy in the state (Vivian et al. 2017).
 

3. UPHOLDING HISTORIC TREATIES AND / OR SIGNING NEW TREATIES

    Partial; limited to state government initiatives.

   
Upholding Treaties Scores
Year: 1980 2000 2010 2020
Score: 0 0 0 0.5

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. Despite the establishment of the ATC, throughout the 1980s - 2000s, movement towards Aboriginal treaties was limited.
  • As with land rights, government progress towards a treaty relationship with Indigenous Australians appears to be happening at the state level first.
  • In 2015, the Western Australia Government signed a $1.3 billion settlement with the Noongar people under the Native Title Act. The Native Title Act is primarily a mechanism for land claim., However, the final agreement addressed issues of governance, finance, and cultural heritage, among others, approximating modern treaties present in Canada and New Zealand.
  • In 2018, the Victoria parliament passed legislation to create a framework for Indigenous treaty negotiations (Wahlquist 2018).
  • Also in 2018, the Northern Territory Government pledged to undertake a treaty process, and signed the Barunda Agreement, which committed the government to develop a treaty process in negotiation with the Aboriginal groups in the Territory within three years (Allam 2018).
  • Most recently, in 2019, the Queensland Government announced its interest in pursuing a pathway to a process for Indigenous treaties.
 

4. RECOGNITION OF CULTURAL RIGHTS (LANGUAGE, HUNTING / FISHING, RELIGION)

    Yes; largely hunting and fishing, as well as religious, some language.

   
Recognition of Cultural Rights Scores
Year: 1980 2000 2010 2020
Score: 0.5 0.5 1 1

Evidence:

  • 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).
  • 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.
  • 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.
  • The Commonwealth Government passed the Aboriginal and Torres Strait Islander Peoples Recognition Act into law in 2013. The Act included specific recognition for Aboriginal and Torres Strait Islander languages; the Act had a 2-year sunset clause and is no longer in force).
  • In 2017, New South Wales became the government in Australia to pass Aboriginal language protection legislation. The Aboriginal Languages Act recognizes importance of Aboriginal languages and the role that language loss was a product of government action and policy. The legislation also establishes the Aboriginal Languages Trust to support the maintenance and revitalization of Aboriginal languages in the state.
  • 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.

   
Recognition of Customary Law Scores
Year: 1980 2000 2010 2020
Score: 0 0.5 0.5 0.5

Evidence:

  • 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..
  • Amendments were made in 2006 and 2007 to Commonwealth and Northern Territory legislation limiting consideration of cultural practice and customary law in bail and sentencing decisions. The bail and sentencing legislation of all other Australian jurisdictions allow for consideration of customary law and cultural practice in bail and sentencing decisions.
  • The variety of legislation in effect by both the Commonwealth and state governments means that some aspects of Aboriginal customary laws and traditions are recognized. These include limited provisions recognizing traditional Aboriginal marriages, recent initiatives around Aboriginal child care practices, the distribution of property upon death in accordance with Aboriginal family and kin relationships, and the protection of sacred and significant sites of Aboriginal tradition and culture, among others.
 

6. GUARANTEES OF REPRESENTATION / CONSULTATION IN THE CENTRAL GOVERNMENT

    Partial.

   
Guarantees of Representation Scores
Year: 1980 2000 2010 2020
Score: 0 1 0.5 0.5

Evidence:

  • From 1990 until 2005, the Aboriginal and Torres Strait Islander Commission (ATSIC) was the national government body for indigenous policymaking and program/service deliver.
  • When ATSIC was operational, 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. ATSIC was abolished under the Howard government through an act of parliament in 2005.
  • Following the abolition of ATSIC, the Office of Indigenous Policy Coordination (OIPC) assumed the broad functions of the organization, absent the representative function. 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).
  • A new, national representative body, designed to replace the Aboriginal and Torres Strait Commission, was expected to be established and be fully operational by January 2011 (Anaya 2010, 9, para. 13). That body – the National Congress of Australia’s First Peoples – faced several challenges to its operation and success. In 2013 the Commonwealth government indicated it would not continue to support it, and government financial contributions to the organization stopped in 2016. In 2019, the National Congress ceased operations.
  • In 2017, the First Nations National Constitutional Convention supported the Uluru Statement from the Heart, which called for constitutional reforms to enable formal recognition and consultation of Aboriginal and Torres Strait Islander peoples on policy issues and legislation affecting their communities.
  • The Statement recommended the creation of a Voice to advise the Australian Parliament on issues of structural disempowerment and systemic racism against Aboriginal peoples. The Statement did not define what such an institution would look like.
  • Government and federal-level political support for the statement has been mixed. In June 2017, the Referendum Council recommended that a referendum be held with respect to amending the Australian Constitution to enable a representative body to give Aboriginal and Torres Strait Islanders a Voice to the Commonwealth Parliament (Referendum Council 2017); the recommendation for a referendum was rejected by the Australian government.
  • The Government of Australia convened the Joint Select Committee on Constitutional Recognition in March 2018. The Committee supported the creation of an institutional Voice for Aboriginal and Torres Strait Islander peoples, calling for a ‘co-design’ process during the 46th Parliament.
  • During the 2019 election, the political platforms of the Liberal-National Coalition, Australian Labor Party, and Australian Greens all supported the creation of an Aboriginal Voice to Parliament, and the establishment of a truth-telling process.
 

7. CONSTITUTIONAL OR LEGISLATIVE AFFIRMATION OF THE DISTINCT STATUS OF INDIGENOUS PEOPLES

    Partial.

   
Affirmation of Distinct Status Scores
Year: 1980 2000 2010 2020
Score: 0 0 0.5 0.5

Evidence:

  • 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).
  • In 2013, the Commonwealth Government passed the Aboriginal and Torres Strait Islander Peoples Recognition Act into law. In the Act, “The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.” It furthermore “acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters,” and “acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.”
  • The 2013 Act called for a review of support for a referendum to amend the Constitution to recognize Aboriginal and Torres Strait peoples. The Act had a two-year sunset clause, at which point the legislation was no longer in force.  
  • In 2017, the Uluru Statement from the Heart called for constitutional reforms to enable formal recognition of Aboriginal and Torres Strait Islander peoples; as discussed above, those reforms are as yet not implemented.  
  • The Government of Australia convened the Joint Select Committee on Constitutional Recognition in March 2018. The Committee’s Final Report recommended that the government establish a co-design process with the Aboriginal and Torres Strait Islander peoples to establish a model for an Aboriginal Voice to Parliament, through legislative, executive, or constitutional mechanisms. 
  • During the 2019 election, the political platforms of the Liberal-National Coalition, Australian Labor Party, and Australian Greens all supported constitutional recognition.
 

8. SUPPORT / RATIFICATION FOR INTERNATIONAL INSTRUMENTS ON INDIGENOUS RIGHTS

    Partial.

   
Support for International Instruments Scores
Year: 1980 2000 2010 2020
Score: 0 0 0.5 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.

   
Affirmative Action Scores
Year: 1980 2000 2010 2020
Score: 0 1 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 descendants 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.
  • The Australian Cabinet Office’s 2015-2019 Corporate Plan outlines three purposes, the third of which is: Improving the Lives of Indigenous Australians. The plan outlines several measures directed towards affirmative action and improving Aboriginal economic development. These measures include the Indigenous Procurement Policy which sets targets for procurement contracts to be awarded to Indigenous businesses, commitments and targets for vocational training, and the Employment Parity Initiative that aims to provide an additional 20,000 jobs for unemployed Aboriginal and Torres Strait Islander peoples, among others (Government of Australia, 2019).