Legal and Non-Legal Responses Revision Notes for HSC SSCE Legal Studies

Legal and Non-Legal Responses

Legal responses

The Australian legal system has implemented various legal mechanisms to address the disadvantage experienced by Aboriginal and Torres Strait Islander peoples. These responses span criminal law, civil law, anti-discrimination legislation, legal aid services, and specialist bodies. Understanding these mechanisms is crucial for evaluating how effectively the law protects and supports Indigenous Australians.

Note

Legal responses to Indigenous disadvantage operate across multiple domains of law, each addressing different aspects of systemic inequality. When studying these mechanisms, consider both their intended purposes and their practical effectiveness in improving outcomes for Aboriginal and Torres Strait Islander peoples.

Criminal law

Aboriginal and Torres Strait Islander peoples have experienced significant disadvantage within the criminal justice system, both historically and in contemporary times. Two early colonial cases—R v Ballard (1829) and R v Murrell (1836)—highlighted the problematic legal status of Indigenous peoples. In both cases, Aboriginal men were charged with murdering other Aboriginal men, and defence counsel argued that Indigenous peoples were not protected by British laws because they could not access civil rights, testify as witnesses, or claim compensation for dispossessed lands. While the initial response was to dismiss the cases, Justice Forbes later reversed his decision in R v Murrell after consulting with other judges, finding the defendant guilty.

Important

Over-representation in the criminal justice system remains a critical issue in the $21$ st century. Aboriginal and Torres Strait Islander peoples are estimated to be between $9$ and $15$ times more likely to be arrested, charged, and jailed for what has been termed "the trifecta" of offences: offensive language or behaviour, resisting arrest, and assaulting or hindering police.

In $2004$ , Indigenous people in New South Wales appeared in criminal courts four times more frequently than non-Indigenous people. When sentencing occurred, $16$ per cent of Indigenous defendants received jail sentences compared to only $6$ per cent of non-Indigenous defendants.

The Royal Commission into Aboriginal Deaths in Custody (1987) investigated the causes of Indigenous over-representation in custody. The Commission concluded that the fundamental causes were not within the criminal justice system itself, but rather in the broader social, economic, and cultural disadvantages that bring Aboriginal people into conflict with the law in the first place. The Commission made $339$ recommendations to reduce custodial deaths and address systemic issues.

Note

Circle sentencing represents one response to address Indigenous over-representation. This alternative sentencing approach attempts to identify more culturally appropriate forms of punishment after an Indigenous person has been found guilty in an ordinary court. Circle sentencing operates in locations such as Dubbo and Nowra, though it does not apply to all cases involving Indigenous defendants.

Research suggests that releasing all Indigenous people sentenced to fewer than six months imprisonment could reduce the Indigenous jail population by $56$ per cent over twelve months.

Civil law

Australia's adversarial legal system creates significant barriers for Indigenous peoples seeking civil remedies. Civil litigation is extremely costly, and self-representation rarely succeeds. This financial barrier means very few Indigenous (or non-Indigenous) people can afford to act as plaintiffs in civil cases.

The Wik decision (1996) represents a landmark civil law case. Following the Mabo decision, the Wik people of Cape York challenged the legality of pastoral leases on land they claimed as traditional owners. Unlike Mabo, which concerned Crown land, the Wik case involved competing claims between Indigenous peoples and farmers who also asserted legal rights and ownership.

Note

The High Court found in favour of the Wik people, establishing that native title could co-exist with pastoral leases. This meant the Wik people could access their land for customary purposes without interfering with farming or pastoral activities. However, the Court also determined that if conflict arose between native title and pastoral leases, the pastoralists' rights would prevail. While pastoralists did not have exclusive possession rights, they held exclusive rights to pasture.

Following the Wik decision, the federal government introduced the Native Title Amendment Act 1998 (Cth), often referred to as the $10$ -point plan for native title. This legislation sought to balance Indigenous land rights with pastoral interests.

Anti-discrimination legislation

Discrimination in law refers to treating someone unfairly because they belong to a particular group. This includes harassment—unwanted behaviour that offends, intimidates, or humiliates individuals. Two key pieces of legislation prohibit discrimination against Indigenous peoples:

Racial Discrimination Act 1975 (Cth): Federal legislation making racial discrimination unlawful across Australia
Anti-Discrimination Act 1977 (NSW): State legislation establishing the Anti-Discrimination Board of NSW (ADB)

The Anti-Discrimination Board of NSW operates as part of the Attorney-General's Department. Its role includes:

Furthering principles and policies for anti-discrimination and equal opportunity (the right to equivalent opportunities regardless of race, colour, sex, or national origin)
Providing information about rights and responsibilities under anti-discrimination laws
Explaining how to prevent and address discrimination through consultations, education programs, seminars, and publications
Receiving and investigating complaints of discrimination

Note

Amendments in May 2005 improved access to the complaints process by:

Extending the complaint lodgement period from six months to $12$ months after an offence
Allowing the ADB to hear parts of complaints rather than requiring complete dismissal if some elements fell outside legislative coverage

These changes aimed to ensure that legitimate complaints were not dismissed entirely due to technical issues with portions of the case.

Legal aid

Legal aid describes the provision of legal services to socially and economically disadvantaged people at no or very little cost. Government funding enables people who cannot afford private solicitors to access necessary legal services. Several organisations provide legal aid in New South Wales:

Legal Aid Commission of New South Wales
Community legal centres
Aboriginal Legal Service (NSW/ACT) Limited (ALS)

The Aboriginal Legal Service specifically provides legal aid to Indigenous Australians in New South Wales and the ACT in criminal and family law matters. Established on $1$ July $2006$ , the ALS operates $23$ offices across both jurisdictions. It replaced six previous Aboriginal and Torres Strait Islander Legal Services (ATSILS) and their peak body, the Coalition of Aboriginal Legal Services (COALS). The ALS receives government funding to deliver these services.

Important

Legal aid plays a critical role in ensuring equitable access to justice. Without such services, socially and economically disadvantaged people—including many Aboriginal and Torres Strait Islander peoples—would face particular difficulties accessing the justice system due to lack of education, geographic isolation, and financial constraints.

Special commissions

Aboriginal and Torres Strait Islander Commission (ATSIC) was established in $1989$ through the Aboriginal and Torres Strait Islander Commission Act. ATSIC's purpose was to grant greater political power to Indigenous people by allowing them increased participation in Indigenous affairs. The Commission received government funding to establish head and regional offices providing services including:

Health programs
Substance abuse programs
Housing initiatives
Economic development programs

Important

However, ATSIC was officially abolished in March 2005 following criticisms from the federal government and controversies involving the chairman, Geoff Clark. The Liberal-National coalition government replaced ATSIC with the National Indigenous Council (NIC), but this body was widely criticised as ineffective. The Labor government did not continue member contracts after $2007$ .

At present, no independent national body funded by government exists to represent Indigenous interests.

Government inquiries: Aboriginal Deaths in Custody

The Royal Commission into Aboriginal Deaths in Custody was established in $1987$ to investigate the unacceptably high number of Indigenous deaths in police custody and jails throughout Australia. This inquiry represented a significant legal response to community concerns about the treatment of Indigenous people in the criminal justice system.

The Commission's findings revealed:

No evidence of direct foul play by police officers in individual deaths
Serious damage to relationships between Aboriginal and Torres Strait Islander peoples, police, and the wider community due to suspicions
$339$ recommendations to reduce custodial deaths and address systemic issues

Note

The Commission emphasised that over-representation in custody stemmed from the disadvantaged and unequal social, economic, and cultural position of Aboriginal people in Australian society, rather than from problems within the criminal justice system alone.

Land councils and trusts

The Aboriginal Land Rights Act 1983 (NSW) established a mechanism to compensate Indigenous Australians for their loss of land. The Preamble to the Act (as amended by the Aboriginal Land Rights Amendment Act 2014) acknowledges:

Land in New South Wales was traditionally owned and occupied by Aboriginal persons
Land holds spiritual, social, cultural, and economic importance for Aboriginal persons
The need of Aboriginal persons for land must be recognised
Past government decisions progressively reduced land set aside for Aboriginal persons without compensation

The Act established a three-tier network of New South Wales Aboriginal land councils:

The NSW Aboriginal Land Council (NSWALC) at the state level
$13$ regional land councils
$120$ local land councils

Important

Land rights versus native title: Understanding the distinction between these concepts is essential:

Land rights involve governments granting legal rights to a parcel of land to Indigenous people, though usually not exclusive development rights. A legal document or title deed transfers to a community or organisation, and the land typically passes to future generations as it would have before $1788$ .

Native title is not a government grant but rather legal recognition of Indigenous rights in Australian law. It allows access and co-existence for customary lifestyles and traditions to be practised on land. Native title acknowledges pre-existing rights rather than creating new ones.

The NSW Aboriginal Land Council works to secure the return of land that is both culturally significant and economically viable. Its activities include:

Advocating for cultural, social, and economic independence for Aboriginal people
Expressing Aboriginal positions on issues affecting Indigenous communities
Administering funds from mining royalties
Acquiring new lands from the Crown
Approving or rejecting mining activities on Aboriginal land

Non-legal responses

While legal mechanisms provide formal frameworks for addressing Indigenous disadvantage, non-legal responses through political engagement and self-determination initiatives have also played significant roles in advancing Indigenous rights and interests.

Political power

Political power refers to the ability to influence and directly control government policy. Several avenues exist for Aboriginal and Torres Strait Islander peoples to exercise political power:

Parliamentary representation: Having Indigenous MPs in parliament provides direct influence over legislation and policy. In $2003$ , Linda Burney became the Member for Canterbury in New South Wales, making history as the first Indigenous Australian elected to the $158$ -year-old NSW Parliament. She became the eleventh Aboriginal MP and only the fourth Indigenous woman elected to any Australian parliament. Indigenous representation in parliament ensures that Aboriginal and Torres Strait Islander perspectives directly inform legislative debates.

Note

Representative bodies: Organisations such as the NSW Aboriginal Land Council and the former ATSIC wielded political power by determining strategies, policies, and programs for Indigenous communities. While ATSIC operated as an arm of the federal government, it could shape approaches to Indigenous affairs until its abolition in $2005$ .

Shared Relationship Agreements (SRAs): Following ATSIC's abolition, the Commonwealth Government introduced SRAs as voluntary written agreements around particular projects or activities identified as priorities by Aboriginal communities. These agreements set out intended outcomes and the roles and responsibilities of governments and Aboriginal communities. However, concerns have been expressed that SRAs may require Aboriginal people to meet conditions for services that non-Aboriginal people do not face. The effectiveness of SRAs depends on communities having strong leadership, adequate resources, and the capacity to negotiate on equal footing with government officials.

Protest and activism: The power of protest can influence political parties to change policies or legislation, particularly when timed strategically around elections. Public demonstrations and advocacy campaigns have historically drawn attention to Indigenous issues and pressured governments to respond.

Self-determination, including treaties

Self-determination represents a fundamental principle in international law. Article 1 of the United Nations Covenant on Economic, Social and Cultural Rights (1966) states: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

The concept of self-determination for Indigenous Australians raises complex constitutional questions. Social commentator Tim Rowse argues that Indigenous Australians possess a right to self-determination that cannot be honoured simply by granting them the same instruments of self-determination available to all Australian citizens through the Constitution. This is because Indigenous Australians were not parties to the federal compact of $1901$ that established the nation. Simply granting Indigenous Australians voting rights after federation cannot address their exclusion from the founding processes of nationhood. True recognition would require negotiating constitutional changes that acknowledge Indigenous collective interests—potentially including an Indigenous order of government as the instrument of their self-determination as a distinguishable people within Australia.

Note

Treaties: A treaty is defined by the Vienna Convention on the Law of Treaties ( $1969$ ) as "an international agreement concluded between states in written form and governed by international law." Treaties may also be called conventions or covenants.

Many Indigenous people have advocated for a treaty between Indigenous and non-Indigenous Australians. Such a treaty could take various forms, including a bill of rights or an agreement addressing multiple issues. The Treaty of Waitangi in New Zealand between Māori and colonial powers provides an example of how treaties can address historical disputes over land occupation.

Former Prime Minister John Howard opposed recognising Indigenous Australians as having unique culture, religion, customary laws, and communities. In $1988$ , he argued for their integration into mainstream Australian society, and in $2002$ he maintained this position while acknowledging that many Indigenous communities remained in disgraceful conditions. His view was that while some Indigenous Australians were "fully integrated," many others were not.

In $2000$ , former ATSIC chairman Geoff Clark argued that a treaty could "resolve all outstanding issues left in terms of reconciliation" (getting two parties to correspond or make peace). He suggested that proper recognition of Indigenous people's rights, equality, and fairness could all be addressed through a treaty, which he described as "a settlement" of historical grievances.

Remember!

Summary

Key Legal Responses:

Criminal law responses include circle sentencing and the Royal Commission into Aboriginal Deaths in Custody ( $339$ recommendations), but Indigenous over-representation persists with rates $9$ - $15$ times higher than non-Indigenous Australians for "the trifecta" offences
Civil law developments such as the Wik decision ( $1996$ ) established that native title can co-exist with pastoral leases, leading to the Native Title Amendment Act $1998$ (Cth)
Anti-discrimination legislation (Racial Discrimination Act $1975$ (Cth) and Anti-Discrimination Act $1977$ (NSW)) provides legal protection, with the ADB administering complaints and education
Legal aid through the Aboriginal Legal Service (NSW/ACT) operates $23$ offices providing criminal and family law assistance to improve access to justice
Land councils established under the Aboriginal Land Rights Act $1983$ (NSW) create a three-tier system (state, $13$ regional, $120$ local councils) to address land dispossession, recognising the spiritual, social, cultural, and economic importance of land

Critical Distinctions:

Distinguish land rights (government grants of legal rights to land) from native title (legal recognition of pre-existing Indigenous rights allowing access for customary purposes)
ATSIC's abolition in $2005$ left no independent national body representing Indigenous interests, replaced by ineffective alternatives like the National Indigenous Council

Non-Legal Responses:

Political power operates through Indigenous MPs (e.g., Linda Burney, first Indigenous member of NSW Parliament in $2003$ ), land councils, and protest movements
Self-determination and treaties remain contested, with arguments for constitutional recognition and settlement agreements based on models like New Zealand's Treaty of Waitangi

Essential Terms to Know:

adversarial system, circle sentencing, equal opportunity, land rights, native title, reconciliation, self-determination, treaty, Royal Commission into Aboriginal Deaths in Custody, Aboriginal Legal Service, Anti-Discrimination Board, NSW Aboriginal Land Council, Wik decision

Critical Cases: R v Ballard ( $1829$ ), R v Murrell ( $1836$ ), Mabo, Wik ( $1996$ )

Essential Legislation: Racial Discrimination Act $1975$ (Cth), Anti-Discrimination Act $1977$ (NSW), Aboriginal Land Rights Act $1983$ (NSW), Native Title Amendment Act $1998$ (Cth)

Legal and Non-Legal Responses (HSC SSCE Legal Studies): Revision Notes