Constitutional Law - Major Research Essay
The Australian Federal Government introduced the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 (Cth) (the Bill) to Parliament on 28 November 2012. It was given Royal Assent on 27 March 2013 and became known as the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) (the Act). Who the legislation is for
The purpose of the Act may be found in its long title, which is to provide for the recognition of Aboriginal and Torres Strait Islander (ATSI) peoples, and for related purposes. In determining who the Act is for, the definition of ATSI people must be considered. As this Act does not provide a definition, a review of prior Australian legislative and common law definitions is therefore required. The definition of ATSI people has a long and contentious history in Australia. Even today, two very different definitions are concurrently in use. One, commonly found in Australian legislation, defines Aboriginals as 'a person who is a member of the Aboriginal race of Australia'. The second definition, a three-part test proposed in the early 1980’s by the Commonwealth Department of Aboriginal Affairs, identifies ATSI peoples as being ‘of Aboriginal or Torres Strait Islander descent who identify as an Aboriginal or Torres Strait Islanders and are accepted as such by the community in which they live.’ The first definition becomes problematic as it fails to establish the sort of evidence required to satisfy it. Advances in the field of human genetics have concluded that there is no meaningful genetic or biological basis for the concept of ‘race’. The second definition presents its own problems, which arise when the Aboriginality of the community doing the accepting is thrown into question. Subsequent case law has further developed the definition of ATSI people, for example in Gibbs v Capewell (1995), Justice Drummond stated that ‘the less the degree of Aboriginal descent, the more important cultural circumstances become in determining whether a person is 'Aboriginal'’. In Eatock v Bolt , Bromberg J considered the extent to which each criteria in the three-part test needed to be deployed, stating that: “For some legislative purposes and in the understanding of some people, compliance with one or two of the attributes of the three-part test may be regarded as sufficient.” The currently favoured three-part definition may be considered an advancement over earlier colonial definitions of ATSI people, which comprised of derogatory terms such as “nobel savage” or “prehistoric beast”. The fact remains however within in Australia, only ATSI people are required to prove their identity. Furthermore, it is Australia’s legislature, comprising of mainly non-ATSI representatives, who are tasked with defining ATSI people, rather than ATSI peoples themselves. Who will benefit
The question as to who this Act will benefit requires an examination of what the Act aims to achieve prior to the conclusion of its two year ‘sunset provision’, as well as the longer term aims to which the Act is directed. Parliament has acknowledged that the Act is only an interim step towards recognition of ATSI peoples in the Constitution, and that the Act is not intended to be a substitute for constitutional recognition itself. The Act provides for the recognition of ATSI people as Australia’s first occupants, acknowledges their continuing relationship with their traditional land and waters, and acknowledges ATSI people’s culture, language and heritage. The Act does not create any material or economic benefits for ATSI people. Rather, it aims at building political support for Constitutional reform. As the Australian Founding Fathers paid no attention at all to the position of the Australian aboriginal race, the Act may be of some benefit to the emotional wellbeing of ATSI people as it formally acknowledges their cultural heritage. However, due to the...
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