Aboriginal People and Australian Law

Introduction

The legal history of Aboriginal and Torres Strait Islander peoples in Australia is a story of dispossession, discrimination, and resistance, but also of recognition and reconciliation. The foundation of Australian law on the fiction of terra nullius denied the existence of Indigenous legal systems and justified the appropriation of Indigenous lands. For almost two centuries, Aboriginal people were subjected to laws that controlled their movements, their families, and their labour, and that excluded them from the rights and protections of Australian citizenship. The latter decades of the twentieth century saw fundamental legal changes, including the recognition of native title, the enactment of land rights legislation, and the movement towards constitutional recognition. Yet the legal relationship between Aboriginal peoples and the Australian state remains contested and unresolved.

Terra Nullius and Its Consequences

The English colonisation of Australia was justified by the doctrine of terra nullius — the claim that the land was uninhabited or, at least, not settled in any sense recognised by European international law. In Cooper v Stuart (1889) 14 App Cas 286, the Privy Council held that New South Wales was a “settled colony” rather than a colony acquired by conquest or cession. The consequence was that English law was received automatically, and the legal systems of the Aboriginal peoples were not recognised. The English common law did not acknowledge any prior Indigenous sovereignty or property rights.

The doctrine of terra nullius was not finally repudiated until the Mabo decision of 1992. However, its effects were profound. Aboriginal people were denied legal recognition of their ownership of the land, their laws were not enforced, and their political and social structures were disregarded by the colonial legal system.

The Protection Acts

From the mid-nineteenth to the mid-twentieth centuries, the Australian colonies and States enacted a series of Protection Acts that subjected Aboriginal people to a regime of comprehensive legal control. The Aborigines Protection Act 1886 (WA), the Aborigines Protection Act 1909 (NSW), the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld), and similar legislation in other States established Aboriginal Protection Boards or similar authorities with extensive powers over the lives of Aboriginal people.

These boards had power to control where Aboriginal people could live, whom they could marry, whether they could work, and how they could spend their wages. They could remove Aboriginal children from their families, segregate Aboriginal people on reserves, and prohibit the practice of traditional customs. The protection regime was ostensibly benevolent — its stated purpose was to “protect” Aboriginal people from exploitation — but its effect was to deprive them of autonomy and to dismantle their traditional way of life.

The Assimilation Policy and the Stolen Generations

The assimilation policy of the 1930s to the 1960s aimed to absorb Aboriginal people into the mainstream Australian population, erasing their distinct cultural identity. The policy was implemented through a range of legal measures, including the Native Welfare Acts of the 1930s–1960s, which gave government authorities broad powers over Aboriginal people, including the power to remove children from their families.

The Stolen Generations refers to the Aboriginal children who were forcibly removed from their families under these laws, often to be placed in institutions or fostered by white families. The practice of forced removal was widespread: it is estimated that between 10 and 30 per cent of Aboriginal children were removed from their families between 1910 and 1970. The Bringing Them Home Report (1997), the report of the Human Rights and Equal Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, documented the devastating psychological, cultural, and social effects of these removals. The report recommended a formal apology, compensation, and a range of other measures to address the harm caused. In 2008, Prime Minister Kevin Rudd delivered a formal Apology to the Stolen Generations on behalf of the Australian Parliament.

The 1967 Referendum

The 1967 referendum was a landmark in the legal status of Aboriginal people. Two provisions of the Constitution were altered: s 51(xxvi) (the race power) was amended to remove the exclusion of “the aboriginal race in any State,” thereby empowering the Commonwealth to legislate for Aboriginal people; and s 127, which excluded Aboriginal people from the census, was deleted. The referendum was passed with 90.8 per cent approval, the highest “yes” vote of any Australian referendum.

The effect of the 1967 referendum was to give the Commonwealth concurrent legislative power over Aboriginal affairs, enabling the Commonwealth to enact laws for the benefit of Aboriginal people and to override discriminatory State legislation. However, the referendum did not confer any special rights or entitlements on Aboriginal people, and the Commonwealth’s use of the race power has been controversial, particularly in relation to the Northern Territory Emergency Response (the “Intervention”) of 2007.

The Land Rights Movement

The movement for land rights gained momentum in the 1960s and 1970s. The Gurindji people’s strike and walk-off from Wave Hill Station in the Northern Territory (1966) was a pivotal event, drawing national attention to the issue of Aboriginal land rights. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (the Gove Land Rights Case), the Supreme Court of the Northern Territory rejected the claim that Aboriginal people had proprietary rights in land under the common law, holding that the doctrine of terra nullius precluded any recognition of native title.

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) established a statutory scheme for the grant of land rights to Aboriginal people in the Northern Territory. It provided for the establishment of Land Councils to represent Aboriginal interests and for the grant of inalienable freehold title to traditional owners.

The Mabo Decision and Native Title

In Mabo v Queensland (No 2) (1992) 175 CLR 1, the High Court of Australia delivered one of the most significant decisions in Australian legal history. The Court held that the common law of Australia recognised a form of native title derived from the traditional laws and customs of Aboriginal and Torres Strait Islander peoples. The Court rejected the doctrine of terra nullius as a historical fiction and held that native title survived the Crown’s acquisition of sovereignty, subject to its extinction by valid legislation or by inconsistent Crown grants.

Brennan J (with whom Mason CJ and McHugh J agreed) held that native title is recognised by the common law and is subject to the Crown’s radical title — the ultimate ownership of all land. Native title may be extinguished by the Crown, but only by clear and unambiguous legislation or by a Crown grant that is inconsistent with the continued enjoyment of native title. The Court held that the Queensland government’s attempt to extinguish native title by legislation was invalid as discriminatory under the Racial Discrimination Act 1975 (Cth).

The Native Title Act 1993

In response to the Mabo decision, the Commonwealth Parliament enacted the Native Title Act 1993 (Cth). The Act codified the common law of native title, established a regime for the recognition and determination of native title claims, and provided for the validation of past Crown grants that might otherwise have been invalid because of native title. The Act established the National Native Title Tribunal (NNTT) to mediate native title claims and to determine compensation. The Act also provided for future acts — actions that may affect native title — and established a regime of consultation, negotiation, and compensation.

The Native Title Act 1993 has been amended several times, most significantly by the Native Title Amendment Act 1998 (Cth) (the “10 Point Plan”), which was enacted in response to the High Court’s decision in Wik Peoples v Queensland (1996) 187 CLR 1, which held that pastoral leases did not necessarily extinguish native title.

The Uluru Statement and the Voice Referendum

The Uluru Statement from the Heart (2017) was the product of a series of First Nations Regional Dialogues convened by the Referendum Council. The Statement called for three reforms: (1) a Voice to Parliament — a constitutionally enshrined representative body for Aboriginal and Torres Strait Islander peoples to advise the Parliament and the Executive on matters affecting them; (2) a Makarrata Commission — a body to supervise agreement-making between governments and First Nations; and (3) a truth-telling process — a formal process for recounting the history of colonisation and its effects.

The 2023 Voice to Parliament referendum proposed the establishment of a constitutionally enshrined Voice. The proposal was defeated nationally, with 39.9 per cent “yes” and 60.1 per cent “no,” and failed to secure a majority in any State except Victoria. The defeat has been attributed to a variety of factors, including concerns about the scope and legal effect of the Voice, the lack of cross-party support, and a well-organised “no” campaign.

Closing the Gap and Constitutional Recognition

The Closing the Gap policy, established in 2008, sets targets for overcoming Indigenous disadvantage in health, education, employment, and other areas. The policy has had mixed success: some targets (such as early childhood education) have been met, while others (such as life expectancy and employment) have not. The policy framework was revised in 2020 to include a stronger emphasis on partnership and Indigenous-led decision-making.

The broader question of constitutional recognition remains unresolved. The Constitution does not mention Aboriginal and Torres Strait Islander peoples except in s 51(xxvi) (the race power) and the repealed s 127. Proposals for constitutional recognition have ranged from the symbolic (a new preamble or a statement of recognition) to the structural (a constitutionally enshrined Voice). The defeat of the 2023 Voice referendum has left the question of constitutional recognition open, and the path forward remains uncertain.