Aborigines: a history of law and injustice, 1829-1985

Abstract

This research examines the impact of law and of legal institutions on Aborigines from the time of white settlement in 1788 to the present. Part I explains the nature, scope, content and function of the real foundation of my doctoral research, namely, Aborigines and the Law: A Comprehensive Annotated bibliography. This thesis is an analytical and critical gloss on the Bibliography. From that vast compilation of legislation, judicial cases and reference materials, several major recurring themes emerge - in four groupings. The 'grand' legal themes explore issues of sovereignty, the notion of the infant colonies as 'conquered' rather than 'settled', and the amenability of the indigenous people to English justice. The 'important Aboriginal themes' include the enforced separation of Aboriginal children, the maltreatment of Aboriginal women, the removal of people from their homelands and the increasing artificiality of legal, administrative and judicial definitions of Aboriginality based on 'blood'. A third grouping of themes flows from Diceyan rules of law and their modern translation as international declarations of human rights. Finally, there is discussion of the sociology of the family and its disintegration as a result of legal dispersal and institutionalization. These themes are examined with reference to Commonwealth and State laws across the time period. We see how judicial distinctions were ethnocentrically based to the disadvantage of Aborigines. For Aborigines as legal subjects and specially administered people, the concept of universal rights was not only wanting but denied: in respect of freedom from cruel and inhuman or degrading punishment, equality before the law, and freedom of movement and residence. Civil rights and obligations - voting, military and jury service, social welfare - exemplify discrimination based on notions of 'blood', exemption from which required cultural self-denial (Part II). Part III shows the positive role of civil law in legitimating Aboriginal claims to equality and, eventually perhaps, respect. However, a study of Aborigines and racial discrimination, administrative law, equity, torts, family law, employment and industrial law and land rights shows the manner in which Aborigines have been relegated as legal incompetents. Aboriginal legal, judicial, and administrative disabilities are revealed when examining the application of criminal law. Generally, the paradigm is of a people afflicted with collective cultural traits and collective defects. A traversing of the cases, supported by some extensive field work in New South Wales, shows disproportionate police attention to Aborigines, the value and shortcomings of Aboriginal legal aid, the determinism or bias of the judiciary and magistracy based on stereotyping and comparative injustice for many Aboriginal defendants (Part IV) Part V reflects on the totality of the Aboriginal legal experience, concluding that their relationship to and through law was and is a more overwhelming one than that depicted by historians and anthropologists. In this century,law has become an activator and regulator of social behaviour, a set of mechanisms for withholding or facilitating human rights of many kinds. The question is whether law and its many processes - having been responsible for so much of the total Aboriginal experience and condition - can become the vehicle for their aims and claims, their search for legitimacy as a people, their right to justice, their entitlement to respect in a society which so proudly proclaims both its egalitarianism and its luckiness.