Municipalities Role in Indigenous Australia

Abstract

On 9 February 1977, the then Federal Attorney-General, Mr. RJ Ellicott QC, referred the question: “whether it would be desirable to apply either in whole or in part Indigenous customary law to Indigenous people, either generally or in particular areas or to those living in tribal conditions only”.

The fairness of applying the general law to Indigenous people, and the injustice of non- recognition of indigenous customary laws, have been debated in one form or another since settlement, the date from which British law was held to apply to Indigenous people.

 

Table of Contents:

1. Introduction

2. Early Years of British Settlement

3. Assimilation

4. Self-Management or Self-Determination

5. Impact on Traditional Authority

6. Measuring Present Disadvantage

7. A Demographic Survey

8. Urban Indigenous people

9. Fringe Dwellers or Town Campers

 

1. Introduction

On 9 February 1977, the then Federal Attorney-General, Mr. RJ Ellicott QC, referred the question: whether it would be desirable to apply either in whole or in part Indigenous customary law to Indigenous people, either generally or in particular areas or to those living in tribal conditions only.

The fairness of applying the general law to Indigenous people, and the injustice of non- recognition of indigenous customary laws, have been debated in one form or another since settlement, the date from which British law was held to apply to Indigenous people.

 

2. Early Years of British Settlement

Governor Phillip’s directions on first settlement in 1788 had been to keep up serene and amicable relations with the local tenants. Indigenous individuals were characterized to be British subjects and qualified to the protection of British law. The reality was exceptionally different. As the outskirts of settlement extended more Indigenous area was taken and violence regularly emitted. The Indigenous people, having no perceived title to the area yet being viewed as British subjects for the reasons of the law, were liable to be dealt with violence in the event that they opposed infringements upon their territory.

 

3. Assimilation

Proceeding with troubles, and reactions of the treatment of Indigenous people particularly in central and northern Australia, drove in 1936 to requests by the States for expanded Commonwealth contribution in Indigenous affairs. At the 1936 Premiers’ Conference in Adelaide, it was concurred that while Commonwealth control may not be viable there ought to be consistent gatherings between the State and Commonwealth officers in charge of Indigenous affairs.

At the first such meeting, held in Canberra in 1937, the Commonwealth and the States concurred that the goal ought to be the assimilation at any rate of the natives ofIndigenous origin yet not of the full blood. It could be said assimilation was that part of the strategy of protection concerned with the future of Indigenous people (basically of mixed blood) in settled regions. In the 1950s assimilation turned into a generally acknowledged objective for all Indigenous people and was received as strategy by the Commonwealth and by all State Governments. The policy was characterized at the 1961 Native Welfare Conference of Federal and State Ministers in these terms: “The policy of assimilation means that all Indigenous people and part-Indigenous people are expected to attain the same manner of living as other Australians and to live as members of a single Australian community, enjoying the same rights and privileges, accepting the same customs and influenced by the same beliefs as other Australians” [1].

Steps were taken to attain to this outcome. Expenditure on health, housing, education and training programs started to be expanded in the Northern Territory and in the States. The decrease in the Indigenous population in the north and venter was stopped and turned around in the 1950s, and in southern and eastern Australia the Indigenous population was expanding quickly. In the 1960s a coordinated exertion was made to audit and cancelation prohibitive and oppressive enactment, particularly by the Commonwealth Government, and the instruments of protection were eliminated. Access to government disability advantages for Indigenous people came in 1960, Indigenous people got to be qualified for vote at federal elections in 1962 and the ward ship system in the Northern Territory was disassembled in 1964. State enactment restricting access to liquor for Indigenous people was canceled and, in many jurisdictions, Indigenous people got to be qualified for full Award wages. In 1967 the Constitution was changed by referendum so that Indigenous people would in future be numbered in the Census, and to approve the Commonwealth Parliament to pass laws particularly for the advantage of Indigenous people. An Office of Indigenous Affairs was created by the Commonwealth Government to affect and regulate projects of support for Indigenous People.

 

4. Self-Management or Self-Determination

Lately the strategy of the Commonwealth has been taking into account what has been depicted as the basic right of Indigenous people to hold their racial identity and traditional way of life or, where wished, to receive completely or partially an European lifestyle and has supported Indigenous participation or control in local or community government, and in different areas of concern. This methodology differently depicted as a strategy of organization toward oneself or determination toward oneself has been joined by government bolster projects oversaw by Indigenous associations. Par instance the Indigenous Development Commission was created in 1980 to help further the financial and social advancement of Indigenous people, to advance their improvement and self-management and to give a base to Indigenous economic independence. The issues of the Indigenous Development Commission are to help Indigenous people to obtain land, to take part in business ventures and to acquire account for lodging and other individual needs. Other Indigenous associations, both administrative and non-governmental, are demonstrating progressively critical: these incorporate land councils, child care offices, liquor recovery services, medicinal administrations, inns, legal services and social associations. Endeavors have kept on creating a body which can represent Indigenous and Torres Strait Islander ideas on all matters of approach, through offering exhortation to the Commonwealth and in other ways.

The Commonwealth’s approach has been figured by the Federal Minister for Indigenous Affairs in the accompanying way: “This Government looks to achieve further progress for the Indigenous and Torres Strait Islander people through the two principles of consultation and self-determination, that is, with the involvement of the Indigenous people in the whole process ... All our policies, each of our programs and projects, have been and will continue to be fashioned in discussions with Indigenous people and their organizations at national and community levels.” [Hon C Holding MHR, Commonwealth of Australia ‗134 Parl Debs (H of R) (8 December 1983) 3487]

There are, unmistakably enough, contrasts between the expressions self-management, consultation, and self-determination. Full self-determination in a specific field infers more than either administration by or consultation with the self-involved.

 

5. Impact on Traditional Authority

Traditional authority and Indigenous customary laws have been especially influenced by the methods of settlement and dispossession. Undoubtedly, as Dr von Sturmer has called attention to: “Traditional authority was undermined even where there was no dispossession, certainly none of the sort that Indigenous people were aware of. This may even be true of pastoral properties where people may have been aware that they are moving into new sorts of relationships but may have continued to believe that they owned/controlled the land. I recall that the people at Aurukun with whom I worked were quite shocked when I told them in 1970 that the government, not they, owned the land. And in many of the pastoral properties it seems that Indigenous people believed they were working the land in conjunction with the European pastoralists.” [J. von Sturmer, Submission 403 (March 1984) 19]

The purposes behind the undermining of traditional authority go much more profound than researches to liquor, to material merchandise or to the impact of the broad communications would recommend. The general non-acknowledgment of Indigenous customary laws was another factor. While the outstation development and the allowing of area rights are parts of what has been seen as a revival of Indigenous custom and society, it stays genuine that from the soonest days, European contact had a tendency to undermine Indigenous laws, society, culture and religion – a procedure which is a continuing one. Indigenous people keep on confronting troublesome decisions about their lives and their spot in their own groups.

A sample is the support now given to the foundation of Indigenous associations.

Indigenous people elected to hold office in group committees are frequently more youthful, school-taught Indigenous people who are more talented in the ways and ideas of the more extensive Australian culture than the elders. This can create pressures or divisions inside a group, cutting crosswise over and undermining customary lines of authority. Then again, this example is not widespread in a few groups the holders of customary power keep on practicing their impact through the chose office holders, while somewhere else an unmistakable refinement may be drawn between the forces practiced by the chose gathering and the power of older men and women. Whatever the focal points to be picked up by Indigenous people from mining operations on Indigenous area, or from the joining or enrollment of gatherings, such procedures essentially include the individuals from the specific gathering in change and in redefinition of their connection to one another and to the more extensive society. These methodologies are often excruciating, troublesome and antagonist.

 

6. Measuring Present Disadvantage

The degree of past disengagement and dispossession is all around reported, yet it is harder to survey its effect on current neediness and hindrance among far reaching an assorted Indigenous population. Insights on poverty and inconvenience are lacking and there has been a hesitance to gather or keep measurements recognizing Indigenous people as a different group. Additionally, statistics have a tendency to show side effects, not causes, and there is now and again a suspicion that the social substances they reflect are a result of outer components working on uninvolved (Indigenous) populaces. Measurements used to exhibit drawback might likewise be reflecting social contrasts, and a research by Indigenous people to hold their own particular manner of life in spite of those inconveniences. In any case the indications, and the measurements, are critical: “[Indigenous people] probably have the highest growth rate, the highest birth rate, the highest death rate, the worst health and housing and the lowest educational, occupational, economic, social and legal status of any identifiable section of the Australian population” [2].

There are other well-known figures:

A review by the Indigenous Development Commission in June 1983 demonstrated that 6003 Indigenous people were on the holding up lists of lodging associations and that further 2000 houses were expected to house periphery dwellers [3].

The 1981 National Population and Housing Census demonstrated that the yearly Indigenous wage per head was pretty nearly 50% of that of the Australian populace as a whole. (id, 48 ($6000 pa compared with a national average of $12 000). For earlier studies see e.g., [4].) 1981 enumeration figures demonstrate that nearly 12.5% of all Indigenous people 15 and over have never gone to class. This contrasts with 1% for the non-Indigenous population [3, p.36].

Indigenous unemployment is just about three times the rate of unemployment for non- Indigenous individuals. In the range of 23474 Indigenous people (1 in 8) were unemployed as at September 1985.114 Twenty-five % off all unemployed Indigenous people were under 20 [Commonwealth Employment Service Statistics: Department of Employment and Industrial Relations, September 1985].

The normal life expectancy for Indigenous people is much lower than for non-Indigenous individuals. In 1981 the normal life expectancy for Indigenous individuals living in territories in New South Wales was roughly 49 years for males and 56 years for females [NSW Department of Health, ‘Indigenous Mortality in NSW Country Regions 1980/81’ (unpublished), Sydney, October 1983, 4].

The pervasiveness of the eye malady, trachoma, has been evaluated to be 15 times higher for Indigenous people than for non-Indigenous individuals. In a few territories of the Northern Territory and Western Australia up to 77% of Indigenous people are affected [5].

The number of Indigenous children in substitute consideration plans is alarmingly high. In New South Wales, for instance, as at 30 June 1981, 15% of kids in substitute consideration (barring adoption) were Indigenous people (587 of 3836 kids), albeit Indigenous People make up under 1% of the aggregate populace of New South Wales. (Cited in Indigenous Children’s Research Project (NSW), Draft Principal Report, Sydney, 1982, 75. Cf. the Project’s Discussion Paper No 3, Assimilation and Indigenous Child Welfare — the NSW Community Welfare Bill, Sydney, 1981, 8, which points to the high rates of breakdown of foster care and adoption placements when Indigenous children are placed with non-Indigenous families.)

This speaks to 5% of all Indigenous children in substitute consideration contrasted with 0.4% of all non-Indigenous youngsters. In Western Australia, more than 54% of the youngsters (937 of 1710) in child care situations are named Indigenous or Torres Strait Islander; and more than 58% of the kids (821 of 1411) in residential child care foundations are comparably classified. (Information provided through WELSTAT, Department of Social Security, Canberra. Figures as at 30 June 1981. See further para 346)

Indigenous people are horribly over-represented in Australian criminal statistics, both regarding conviction rate and the rate of detainment. Indigenous capture rates are altogether higher than those for non- Indigenous individuals. For sample, in the Northern Territory in 1977-78, 78% of those Indigenous people, yet Indigenous people made up just 25% of the population [6]. Indigenous people are factually less inclined to be discharged on safeguard, and more prone to be indicted than non-Indigenous individuals. They are factually more prone to get a jail sentence than non-Indigenous people.

The crime rate on Queensland Indigenous reserves was, between 1979-81, 39.6 per 100 000 or practically ten times both the national and Queensland average [Evidence of Dr Paul Wilson, R v Alwyn Peter, unreported Queensland Supreme Court (Dunn J) 8-11, 18 September 1981, transcript 34-6; 7].

The attack rate on Indigenous reserves in Queensland was 226.05 per 100 000, while the Queensland rate was 43.85 per 100 000. Indigenous people in Queensland have a detainment rate of 410 per 100 000, seven times higher than the overall population in that State [Clifford, W. (1982). An Approach to Indigenous Criminology. ANZJ Crim 3(15), pp. 8-9].

It is against this foundation of hardship and disengagement that any examination of Indigenous customary laws must occur.

 

7. A Demographic Survey

The Commonwealth Department of Indigenous Affairs assesses that there are roughly 167 600 Indigenous people, speaking to 1.1% of the number of inhabitants in Australia.

Conversely with the non-Indigenous populace, an impressive extent of the Indigenous people lives outside the metropolitan zone. In 1981 nearly 128 000 Indigenous individuals (80% of the aggregate) were then living outside major urban centers [3, p. 4] – (defining major urban centres as cities of 100 000 or more). 41.6% of Indigenous people in 1981 lived in rural areas (compared with 55.7% in 1971). Proportionately numerous more Indigenous individuals live in the Northern Territory (23.6% of the complete populace) than in some other State or Territory. Nonetheless, the total number of Indigenous people in each of Queensland, New South Wales and Western Australia is higher than in the Northern Territory.

What isn’t shown by these facts is the way that Indigenous people in Australia today live in groups which shift hugely in size, character and area. These incorporate little, remote groups, outstations, missions, government holds (however the quantities of both of these have declined significantly in the most recent decade), properties claimed by Indigenous people, camps in and around bigger urban cities (e.g., Alice Springs), and groups in metropolitan territories. The Department of Indigenous Affairs has made reviews of all Indigenous communities in all State and the Territories. This measurable survey contains demographic subtle elements, as well as data as to the instructive, wellbeing, work, group administrations (water supply, sewerage, power), lodging and welfare administrations accessible [Department of Indigenous Affairs, Community Profile Statistical Collection 1981]. The figures got are extremely rough, yet they do issue some thought of the circumstance. The 1977 Survey evaluated the aggregate populace in these groups to be 125 097. In 1978, it was 135 600; in 1981, 208 485. (The 1977 and 1978 Surveys did not include all Indigenous people, but attempted to identify discrete communities.)

Approximately 66% lived in or around urban areas and towns. In 1981 there were 893 Indigenous groups, 500 of which were in urban zones or on stores or camps in urban territories.

Accordingly, 86% of these groups had less than 300 individuals and 90% less than 400.

For sure if urban groups are subtracted, 92% of these groups number under 400. There were then 116 groups numbering more than 400, of which just 37 were not in or around urban regions. In all groups in any event a large portion of the populace would be kids [Department of Indigenous Affairs, Community Profile Statistical Collection 1981, Tables 1-11].

Indigenous people living on outstations come into contact with the legal system to a much lesser degree than do other Indigenous people. These developments don’t however take care of the issues of separation and financial burden. Couples of Indigenous people living in remote groups are utilized. Years ago, few take an interest in the peaceful business, which now obliges a diminished, and prevalently occasional, work power. Customarily arranged Indigenous people have restricted access to health and educational offices – an issue additionally for non-Indigenous individuals living in remote ranges. Satisfactory sanitation and water supplies are high needs, as are enhanced method for communication. There are additionally issues in giving fitting instructive offices in remote areas. The option of leaving the group for educating in urban communities’ numerous miles away can be laden with challenge [8].

 

8. Urban Indigenous people

Urban Indigenous people include those living in towns, (for example, Alice Springs), or in capital urban areas (La Perouse and Redfern in Sydney, Fitzroy in Melbourne and Port Adelaide). Most city inhabitants live in conventional houses and use general institutions, for example, schools, hospitals and shopping malls. Unemployment issues are extreme, making it hard to pay the rent for settlement. The origination of Indigenous Hostels Ltd and the procurement of Indigenous lodging have to some degree diminished, however in no way, shape or form completely met, these lodging needs. Discrimination in the work power, in securing convenience and in connection to the law is evident in the cities, and is exacerbated, at times, by poor Indigenous/police relations [9, 10].

 

9. Fringe Dwellers or Town Campers

Between these two groups is a substantial number of Indigenous people for whom conventional Indigenous law, society and lifestyles have been widely adjusted by habitation near to towns or urban areas. Periphery occupants (dwellers or town campers) have been characterized as: “... any group of Indigenous living at identified camp sites near or within towns or cities which form part of the socio-cultural structure of the towns and cities, but which have a lifestyle that does not conform to that of the majority of non-Indigenous residents and are not provided with essential services and housing on a basis comparable to the rest of the community” [House of Representatives Standing Committee on Indigenous Affairs, Strategies to Help Overcome the Problems of Indigenous Town Camps, Canberra, 1982, para 31; see generally id, para 15-33].

In its Report on techniques to beat the monetary and social issues of dwellers, the House of Representatives Standing Committee on Indigenous Affairs assessed that there were in 1982 between 15650 to 19600 town campers in about 206 groups in Australia, and recognized three sorts of individuals who lived around the local area camps. They were the permanents (who had been constrained into periphery settlements by loss of vocation opportunities or absence of facilities in their home groups, by the impacts of government strategy, by pressure of urban life, or in trying to escape from tribal power and laws. The Committee found that occupation opportunities in the camps were few and that the majority of the wage of the groups was gotten from government services. Alcoholism and liquor ill-use present proceeding with problems, despite the fact that town campers have their own particular techniques for living and adapting to problems. For instance, there is confirmation that women are demonstrating leadership and strength in Indigenous town camps [House of Representatives Standing Committee on Indigenous Affairs, Strategies to Help Overcome the Problems of Indigenous Town Camps, Canberra, 1982, para 31; see generally id, para 15-33].

Fringe groups when all is said in done face issues of deficient housing and need of water, sewerage, transport and other facilities. The Department of Indigenous Affairs has expressed that instructive issues are almost absolutely more regrettable for all children originating from periphery regions than for their companions from elsewhere. (id, Evidence, 16. For further information see [11])

Social disturbance and continuous clash with the police and the courts are also piece of periphery abiding life. These are trademark illustrations of the financial and social hardship imparted both by remote and urban Indigenous groups. They don’t, generally, include inquiries of the acknowledgment of Indigenous standard laws, despite the fact that issues, for example, the policing of town camps and neighborhood equity instruments are relevant [12].

 

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