Aboriginal and Torres Strait Islander Peoples Recognition Act 2013
Constitutional Law - Major Research Essay
PART A:
Introduction
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
PART A:
Introduction
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