Key events affecting ATSI justice issues

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

For a summary of key legal and political events impacting on Aboriginal people in WA since colonisation, see the box below.

The history of Aboriginal and Torres Strait Islander peoples since the arrival of European people in Australia has been deeply affected by dispossession, massacres, oppression, discrimination, and ultimately what was an attempt at genocide through government policies aimed at ‘breeding out’ the Aboriginal race. In dealings with the newly imposed legal system, Aboriginal and Torres Strait Islander peoples have been harshly treated, and existing Aboriginal Traditional Lore systems ignored.

Aboriginal and Torres Strait Islander peoples remain disproportionately disadvantaged compared to other Australians in relation to all socioeconomic factors including, health, life expectancy, infant mortality rates, education, employment, housing, wealth and prison population. There have been attempts to remedy these issues by Governments in recent times through an Apology for past policies which led to what is now known as the Stolen Generation, a ‘Closing the Gap’ initiative aimed at ensuring Aboriginal socio-economic factors can be brought into line with those of non-Aboriginal Australians and processes such as Reconciliation and discussions regarding Treaty.

Key legal historical events in the history of Aboriginal and Torres Strait Islander Peoples in WA

40,000 BP - 1829	Aboriginal Traditional Lore was the only legal system to exist.
1829	Western Australia is colonised by Britain and the British legal system begins to apply. During the next few years an Aboriginal prison is established on Rottnest Island, a direction is made excluding Aboriginal peoples from towns and Aboriginal peoples are massacred at Pinjarra.
1883	A Royal Commission is held to inquire into treatment of Aboriginal prisoners.
1886 - 1898	The Aborigines Protection Board is established to provide food, clothing and education for Aboriginal peoples. The WA Constitution is amended to provide for 1% of gross revenue to be used for Aboriginal welfare. Aboriginal peoples are denied the vote in Western Australia.
1905	The Aborigines Act 1905(WA) is enacted outlining the State’s interactions with Aboriginal peoples and the provision of welfare to the ‘native inhabitants’ of WA.
1944	The Natives (Citizenship Rights) Act 1944(WA) is enacted enabling Aboriginal people to apply to be an Australian citizen subject to certain criteria denying Aboriginal people connection to their families and Aboriginal way of life.
1962	The Commonwealth Electoral Act 1962 (Cth) is enacted providing Aboriginal people with the right to vote in Commonwealth elections (non-compulsory), irrespective of their right to vote in state elections.
1963	The Native Welfare Act 1963 (WA) repealed the Aborigines Act 1905 (WA).
1967	The Referendum to allow the Commonwealth to make laws for Aboriginal people and count people in the census is passed.
1973	The Aboriginal Legal Service of Western Australia was established.
1975	The Racial Discrimination Act 1975 (Cth) is enacted, granting all Australians equal treatment before the law in relation to certain matters including voting, freedom of movement, property and education.
1979	Aboriginal Communities Act (WA) enables some Aboriginal communities to control community affairs.
1980	Arising out of disputes at Nookanbah Station, the Aboriginal Heritage Act 1972 (WA) is amended to give the relevant Minister power to approve the disturbance of Aboriginal sacred sites.
	The first Aboriginal person is elected to WA Parliament, Ernie Bridge.
1984	Voting in Commonwealth elections by Aboriginal and Torres Strait Islander peoples is made compulsory.
1987	The Royal Commission into Aboriginal Deaths in Custody is established. It hands down its report in 1991.
1988	The Barunga Statement is made in the Northern Territory where the Prime Minister Bob Hawke confirms the government is committed to working towards a negotiated Treaty with Aboriginal Peoples.
1990	The Aboriginal and Torres Strait Islander Commission (ATSIC) is established, consisting of members elected by Aboriginal and Torres Strait Islander peoples. ATSIC is de-funded by the Federal Government in 2004.
1991	Council for Aboriginal Reconciliation established by the Federal Parliament’s Council for Aboriginal Reconciliation Act 1991 (Cth)
1992	The High Court decides in Mabo v Queensland (No 2)[1992] HCA 23 that Australia’s common law recognises a form of traditional native title.
1993	The Federal Government legislates a system for recognising, registering, extinguishing and determining disputes in relation to native title with the introduction of the Native Title Act 1993 (Cth).
1994	The National Native Title Tribunal is established.
1995	The Human Rights and Equal Opportunity Commission brings an Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families.
1997	The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (the Bringing them Home Report) was tabled in Federal Parliament with key recommendations for redress.
2001	Council for Aboriginal Reconciliation ceased to exist because of sunset clause in the legislation that it established it. Reconciliation Australia established.
2002	The report of the WA Inquiry into the Response by Government Agencies to complaints of Family Violence and Child Abuse in Aboriginal Communities (“the Gordon report”) is published.
2008	The Prime Minister of Australia, Kevin Rudd moved a Motion of Apology to Australia’s Indigenous peoples in the Commonwealth House of Representatives for the laws and policies of successive parliaments and Governments that resulted in the Stolen Generations (one of the key recommendations from the Bringing them Home Report)
2009	Australia endorses the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) after originally voting against it when it was adopted by the General Assembly in 2007.
2010	The first Aboriginal person is elected to the Federal House of Representatives, Ken Wyatt representing the West Australian seat of Hasluck.
2012	The Final Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution is published providing options for constitutional recognition of Aboriginal and Torres Strait Islander Peoples.
2013	The Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) is passed which sets out a process to move towards a Referendum to recognise Indigenous peoples in the Australian Constitution.
2015	Referendum Council established to advise Prime Minister and Leader of the Opposition the next steps for successful constitutional recognition of Indigenous peoples.
2016	The Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA) is passed. It is the first formal legislative and parliamentary recognition of Aboriginal people as the traditional owners of the south west of WA (the Noongar People).
2017	The National Constitutional Convention is held with Aboriginal and Torres Strait Islander representatives from across Australia at Uluru. Referendum Council delivers report including Uluru Statement to the Prime Minister and Leader of the Opposition.
2018	Apology from the WA Police Commissioner on behalf of the WA Police Force for their participation in past wrongful actions including the Stolen Generations.

WA's Colonial History

British Sovereignty in WA was declared in 1829 by James Stirling. There was no recognition by the colonisers of the existing peoples, cultures and lores and their sovereignty that existed when Europeans first arrived in WA. There was no engagement with Aboriginal peoples to obtain their consent to occupy these lands nor attempts by the Colony to understand the complex system of lores and customs that existed. Frontier conflict arose due to a clash in worldviews and there was widespread government and police sanctioned killing of Aboriginal peoples. Some of the most-well known recorded killings occurred en masse throughout WA including massacres at the following places in the approximate years:

• Fremantle (1830);
• Pinjarra (1834);
• Wonnerup near Busselton (1841);
• Bootenal Swamp near Geraldton (1854);
• Le Grange Bay in the Kimberley (1865);
• Flying Foam Massacre in Dampier Archipelago (1868);
• Kukernarup near Ravensthorpe (1880);
• Halls Creek (1887)
• The Killing Times in the East Kimberley (1890-1926)
• Sturt Creek Massacre near Halls Creek (1922); and
• Forest River Massacre near Oombulgurri Community (1926).

These events have had lasting impacts on the relationship between Aboriginal and non-Aboriginal people in WA, particularly in relation to the Government and police’s interaction with Aboriginal peoples. There have been efforts in recent times to remedy these complex historical, political and legal issues discussed further below.

The 1905 Act and other early legislative instruments effecting Aboriginal Peoples

In 1905 the Aborigines Act 1905 (WA) was introduced. This is commonly referred to today as the ‘1905 Act’. Some of the key provisions of this Act included:

• the Chief Protector of Aborigines was made the legal guardian of every Aboriginal child (Section 8);
• the power to create Aboriginal reserves (Section 11);
• the Chief Protector of Aborigines was given the power to manage all property of Aboriginal people, including the ability to sell or dispose of it (Section 35);
• it made it an offence for a non-Aboriginal person to cohabitate and have sexual relations with an Aboriginal person (Section 47);

The 1905 Act seated the legal framework which led to the Stolen Generations. It provided the legislative authority for the State, via the Chief Protector of Aborigines, to remove a defined class of Aboriginal children from their families without the consent of the parents or a court order. This was achieved through Section 8 of the 1905 Act, which made the Chief Protector the legal guardian of every Aboriginal and ‘half-caste’ child until such child attained the age of 16 years. Subsequent amendments increased this to 21 years and the guardianship provision remained in force until repealed by the Native Welfare Act 1963 (WA).

The 1905 Act was used to try and assimilate Aboriginal people through separating children from their Aboriginal families. Often this assimilation policy was coated in language that spoke of the complete ‘absorption of’ Aboriginal and Torres Strait Islander peoples, particularly those of ‘lighter skin’, into the dominant white European population. The 1937 Canberra conference of Commonwealth and State Aboriginal Affairs ministers, a conference dominated by Western Australia, Queensland and Northern Territory, resolved to support a policy of the complete ‘absorption’ of the Aboriginal and Torres Strait Islander peoples of Australia into the European population. Thus, much of the education practice, and the very way of life in missions and other institutions, were aimed at indoctrinating European beliefs in Aboriginal children.

Aboriginal children were taken to institutions across WA, some of the largest and most well-known included:

• Carrolup mission;
• Moore River Native Settlement;
• New Norcia;
• Roelands Missions; and
• Sister Kates.

These missions were often faith-based and religious teachings were strictly forced upon the children who were deemed as orphans. It is now well-known that there was sub-standard care and physical and sexual abuse in the missions and other institutions. Many Aboriginal and Torres Strait Islander children separated from their families spoke of harsh conditions, denial of parental contact and cultural heritage and language, harsh punishment and physical and sexual abuse (See for example the podcast Sister Kate's: the whitewashing of black children at http://www.abc.net.au/radionational/programs/the-history-listen/sister-kates/10003902 ). This has resulted in intergenerational trauma which has been played out through substance abuse, contact with the criminal justice system, poor health, suicide, mental illness, loneliness, and alienation

The Natives (Citizenship Rights) Act 1944 (WA) was enacted to allow for Aboriginal peoples to apply for a Certificate of Citizenship which granted them citizenship rights. In order to be granted Citizenship, the Aboriginal person applying had to prove (Section 5(1)):

• full citizenship rights were desirable and likely to be conducive to their welfare;
• they had adopted the manner and habits of civilised life for two years prior to their application;
• they understood and could speak English;
• they were not suffering from disease;
• they were of industrious habits and of good behaviour and reputation; and
• they were reasonably capable of managing their own affairs.

Royal Commission into Aboriginal Deaths in Custody

The Royal Commission into Aboriginal Deaths in Custody (“RCIADIC”) was established by State and Commonwealth Governments on 16 October 1987 as a response to public concerns about the number of Aboriginal deaths in custody. The RCIADIC investigated and reported upon the deaths of 99 Aboriginal and Torres Strait Islander individuals. Thirty-two of those deaths occurred in Western Australia.

On 9 May 1991, the final report of the RCIADIC was tabled in Federal Parliament. This consisted of 5 volumes which contained 339 specific recommendations. In addition, there are the reports of Commissioner O’Dea (2 volumes) who discussed the individual deaths in WA and Commissioner Dodson (2 volumes) who examined the underlying issues involved in the deaths in WA. Although the Commissioners generally did not find evidence of deliberate foul play and violence by the custodians, they did find gross evidence of a general “lack of care” by custodial authorities.

From an early stage in investigations the disproportionate rate at which Aboriginal and Torres Strait Islander peoples are arrested, detained and imprisoned was identified as the principal explanation for the large number of Aboriginal and Torres Strait Islander deaths in custody. As a consequence, the RCIADIC largely focussed on the underlying issues which contribute to the appalling imprisonment rate of Aboriginal and Torres Strait Islander peoples. The Royal Commission found the most significant factor contributing to the over-representation of Aboriginal and Torres Strait Islander peoples in custody is the disadvantaged and unequal position that they find themselves in Australian society today.

Although the recommendations of the National Report address issues of health, alcohol and drug abuse, education, economic opportunity, housing and land needs, about 200 of the recommendations are concerned with law and justice issues. These recommendations focus on improving custodial health and safety, the prison experience, relations between Aboriginal and Torres Strait Islander peoples and the police, the juvenile justice system, the adult criminal justice system and post-death investigations.

In 1994, the Aboriginal Legal Service of Western Australia (Inc) (“ALSWA”), which has played a large role in monitoring the implementation of the various recommendations, reported that despite the recommendations of the Royal Commission, Aboriginal and Torres Strait Islander individuals in WA were 51.9 times more likely to be detained in police custody than other individuals. This is double the level of representation of any other State or Territory.

The most recent progress report into the implementation of recommendations is the Western Australian government’s 2000 Implementation Report. This report describes the progress of each recommendation and also contains a statistical report on the involvement of Aboriginal and Torres Strait Islander individuals in Western Australia’s criminal justice system.

Other means of attempting to address the over-representation of Aboriginal and Torres Strait Islander peoples in custody have occurred through:

• the application of sentencing principles by the court: see, for example, R v Scobie (2004) 28 Crim LJ 179;
• the establishment in prisons of the At-Risk Management System (ARMS). Under this system, if a prison decides that a prisoner is at risk of self-harm or suicide, certain measures are put in place to reduce that risk. Any person with a concern about a prisoner can notify the prison, but the decision about whether or not to implement ARMS rests with the prison;
• community initiatives such as the Deaths in Custody Watch Committee, an organisation that campaigns for remembrance of individuals who have died in custody, support for the families who survive them, and implementation of measures to prevent further deaths in custody. To do so, the Committee regularly liaises with the Inspector of Custodial Services, communities, organisations and government; and
• the operation in WA prisons since 1988 of the Aboriginal Visitors Scheme.

Despite attempts to address the issues set out in the RCIADIC, there has not been a widespread implementation of the recommendations of the RCIADIC Report and Aboriginal Deaths in Custody still occur frequently in WA and throughout Australia, for example the notable deaths of Mr Ward in 2008 near Laverton and Ms Dhu in 2015 in South Hedland.

Bringing Them Home Report and Stolen Generations Litigation

The Bringing Them Home Report was tabled in Federal Parliament in 1997 after the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. It states that from at least the mid or late nineteenth century, there was a policy of forcible separation adversely affecting Aboriginal and Torres Strait Islander peoples across Australia in all States and Territories. It argues that in many cases, forcible separation resulted in deprivation of liberty, violation of parental rights, abuses of legislative and administrative powers, breaches of guardianship obligations and breaches of human rights. The report goes further to argue that the history of separation fulfilled the legal definition of genocide. Specifically, the report argues that the laws and policies promoting the separation of Aboriginal and Torres Strait Islander children aimed to destroy, or had the effect of destroying, Aboriginal and Torres Strait Islander peoples as racial groups and their ‘Indigenous culture’. The report recommends that the Commonwealth, State and Territorial governments and relevant churches provide a reparation package to those separated and their families and communities.

Governments at the Commonwealth, State and Territorial levels have provided reparations to varying degrees such as funding of family reunions and oral history projects. The Commonwealth Government has also issued an Apology in 2008 by then Prime Minister Kevin Rudd. However, recommendations for the establishment of a compensation tribunal have yet to be implemented.

Following the 2017 Royal Commission into Institutional Responses to Child Sex Abuse, the Commonwealth has set up the National Records Scheme commencing
1 July 2018 for people who experienced institutional child sexual abuse.

Some Aboriginal individuals who were removed as children instigated action against the responsible government. However, all court litigation, the two most famous being the Kruger case (Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1) and the Cubillo case (Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 and (2001) 12 FCR 455), has faced insurmountable doctrinal and historical barriers and have failed. In Western Australia, a compensation claim was bought in the Collard case (Collard v Western Australia (No 4) [2013] WASC 544). The Collards were parents of 9 children who were taken away by the Government in the 1950s and 1960s to Sister Kates where some of the children were sexually assaulted. They alleged that the State owed fiduciary duties to them to act in the best interests of the children and not disregard the children’s interest in being raised in their nature family unit and that the State breached these duties. The Court dismissed the case finding that the State did not owe the fiduciary duties alleged.

The Apology

The Future: Moves towards Reconciliation, Constitutional Recognition and Treaty

In the last few decades there have been moves amongst the wider Australian community for Reconciliation between Indigenous and non-Indigenous peoples. In 1991, the Council for Aboriginal Reconciliation was established by an Act of Federal Parliament, the Council for Aboriginal Reconciliation Act 2001(Cth). This Council was disbanded in 2001 due to a sunset clause in the legislation that established it and so Reconciliation Australia was established as the national body for Reconciliation. This organisation promotes the Council’s vision statement calling for “A united Australia which respects our lands; values the Aboriginal and Torres Strait Islander heritage; and provides justice and equality for all”.

In 2012, an Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples handed down a report to the government on possible options for constitutional change to recognise Aboriginal Peoples after consultations with Aboriginal peoples, academics and constitutional lawyers. Subsequently, in 2013, the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) was passed by the Federal Parliament to recognise the work of the Expert Panel and attempt to advance the options or Constitutional reform but this legislation expired after two years in 2015. A Referendum Council was appointed jointly by the Prime Minister and the Leader of the Opposition in 2015 to advise the Prime Minister and Leader of the Opposition on next steps for a successful referendum and build on the work of the Expert Panel. It consulted widely with Aboriginal People as to what form they wanted constitutional recognition to take and this culminated in the Constitutional Convention held in Uluru with representatives of Aboriginal and Torres Strait Islander peoples from across the nation issuing the Uluru Statement from the Heart: https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF

The Uluru Statement calls for substantive constitutional recognition of Indigenous Peoples, a Makarrata Commission to advance a process for treaty negotiations and truth-telling and a First Nations Voice to Parliament. To date, there has been no substantive action on the proposal set out in the Uluru Statement.