The Social and Political Rights of Aboriginal People in Australia - Essay Example

?AUSTRALIAN STUDY THE SOCIAL AND POLITICAL RIGHTS OF ABORIGINAL PEOPLE Introduction “The legal rank of ‘citizen’ in democratic societies is often intended to represent the progressive project of a broader conception of membership in the community” (Rubenstein & Adler 2000: 522). However, only very rarely is it achieved as formal equality, or as substantial equality in social terms. Gender-and-race-neutral conceptions such as citizenship fail to account for the differences of individuals within communities. In Australia, the position of the Aboriginal people is illustrated by the fact that legal citizenship status has not always granted full and equal membership rights. Indigenous Australians although formal legal citizens, were denied even basic rights of citizenship such as the right to vote and to travel. Although it is more than forty years since Aboriginal people achieved formal equality for voting and travel rights, their social, cultural and economic positions are below that of other Australian citizens. This adversely affects the nature of their membership in the community, and our understanding of substantive citizenship (Rubenstein & Adler 2000). From this inequality also emerges the concept of second-class citizens based on Bosniak’s (2000) concepts of ‘citizenship as rights’, ‘citizenship as legal status’, ‘citizenship as political activity’, and ‘citizenship as identity/ solidarity’, each forming a separate discourse. Thesis Statement: The purpose of this paper is to describe the policies which deprived Aboriginal people of their social and political rights. Further, whether indigenous people now enjoy full equality as citizens of Australia, will be determined. Policies which Deprived Aboriginal People of their Rights as Citizens For several decades Australian Aboriginal people were ‘citizens without rights’ in their own land. Chesterman and Galligan (1997) state that they the Aboriginals were denied a share in citizenship rights and entitlements, while being subjected to rule by the European settlers. The authors focus on government institutions and practices, integrating insights from an interdisciplinary approach that examines the political science, history, law and public policy aspects of governmental policies and practices. The defining of citizenship for the Aboriginal people, and the treatment of Aborigines were based on constitutional provision, legislative explanation, administrative practise and judicial determination. In Australia, citizenship is complicated because of the great number of governments involved. Prior to federation, the various colonies had extablished their own regimes which had similarities as well as differences, to govern Aboriginal people. Although the national government did not have the specific power to pass laws with respect to Aboriginal people, the Commonwealth could have improved the status of Aborigines by including them in all the rights and entitlements that it controlled such as “the Commonwealth franchise, sickness and disability pensions and maternity benefits” (Chesterman & Galligan 1997: 6). Further, it could have used its immense powers for taxing and expenditure to provide for Aboriginal people directly, or to leverage better treatment for them from the States. Or, in 1911 when it took over the administration of the Northern Territory from South Australia, the Commonwealth could have defined a model regime for the States to follow; but it did none of these. Federation in 1901 gave the Aborigines nothing, and held no significance for them. “The Constitution refused to acknowledge the Aboriginal people, let alone provide for them in the new nation” (Kelly 2001: 159). This contrasts with both the United States and the Canadian Constitutions which contained provisions relating to the indigenous people. This absence in the Constitution of Australia is the moral vacuum at the heart of the Constitution and the nation. The main reason for it was that the founders believed that the Aborigines were a dying race. Thus, the Constitution was conceptualised on the death of the original inhabitants, a conclusion drawn from scientific faith in Social Darwinism. Therefore, the Constitution mentioned the Aborigines twice, only to exclude them from the census, and to exclude them from the Commonwealth’s power to make laws for the people of any race, for whom it was considered necessary to make special laws. These exclusions remained until removed by a constitutional referendum in 1967. Responsibility for Aborigines was left with the States, most of which had discriminatory laws of different levels of harshness. It is evident that there was no recognition whatsoever that the injustice of Aboriginal dispossession should be addressed or rectified in the new Commonwealth. At the same time, the Constitution did not deny Aborigines rights of citizenship and it did not deny them the right to vote. The denial was a more deliberate and disreputable affair. “In 1902 the Commonwealth Parliament passed a law to provide for a uniform franchise in federal elections” (Kelly 2001: 159). This gave voting rights to all men and women, married or unmarried, aged 21 and over. But the bill was amended to deny Aborigines the vote. As a liberal but racist democracy, Australia rejected the political rights of the Aborigines, which continued into aspects of citizenship law over the next several decades. Only in 1962 was this injustice removed, when the Commonwealth Parliament gave Aborigines the right to vote, thereby eliminating this law from its statute books. Richard O’Connor, had introduced the franchise bill on 9th April, 1902. His approach towards the Aborigines was humane and just. However, he was strongly opposed, and the Aboriginal franchise was struck down. It was stated that the right to vote was not valid when an individual’s name was not on the Commonwealth electoral roll. The Electoral Commission denied federal enrolment to any Aborigine not entitled to vote in a State election before 1902. Thus, the 1902 law sent a signal to politicians, lawyers and the public, that Aborigines were of little worth (Kelly 2001). On the other hand, one of the first and most significant acts of the new Commonwealth parliament was its passing of the Commonwealth Franchise Act 1902. This legislation accorded women voting rights thereby enfranchising women, while barring Aboriginal people from voting. “This exclusionary clause was systematically refined and defined by the federal bureaucracy and utilized by successive federal governments for over six decades to deny Aboriginal Australians citizenship rights and benefits” (Chesterman & Galligan 1997: 11), including maternity allowance, invalid and old-age pensions, and even overseas travel. The 1902 Commonwealth Franchise Act effectively barred Australian Aborigines from the rights of citizenship. This was a historical turning point since subsequent legislation on citizenship rights and benefits routinely copied the Act in excluding Aboriginal natives. A federal political system such as Australia’s involves two levels of government and dual citizenship. Hence, the federal government is not solely responsible for the rights and benefits of citizenship. The States with their residual powers over domains such as health, education, land, civil and criminal law have significant powers to determine citizenship rights and entitlements. Additionally, since the States were developed earlier as self-governing colonies before the Commonwealth was formed, their established colonial citizenship regimes impacted the formation of the new Commonwealth Constitution. Significantly, one of the reasons why the new federal government was not given constitutional power to make laws for Aboriginal people was the belief that Aboriginals were already adequately taken care of under State laws (Thomas 2001). As a result of the reprisal killings on Aboriginal people in the northwest of Western Australia, known as the Forrest River massacre, a positive policy for the care and development of the Aboriginal people was first put forward in 1928 by Adolphus Elkin and Robert Morley (Markus 1990). The policy replaced the laissez-faire or ‘let it be’ approach of the existing protection policy, and drew on new League of Nations standards of behaviour towards indigenous people. The policy promoted the care and development of the Aborigines so that they could be preserved as a people in their struggle for survival against the continued effects of colonisation. Its main purpose was to stop the decline in population of the remaining tribalised Aborigines, which is different from the genocidal goal of absorptionists’ of the same period. Besides administrative changes, Elkin’s policy proposed changes in the British legal system, to include Aboriginal law and tradition and ensure natural justice, and an anthropologically based education for Aborigines on the reserves and tribal lands to ensure cultural continuity along with guided adaptation to aspects of European life. Social and economic change such as the concept of work was to be introduced within existing tribal structures. Further, in several contexts, Elkin spoke of Aboriginal Christianity as its own version founded within existing beliefs and traditions (Thomas 2001). Similar to the determinism of race science legitimising the negative views of Aboriginality propagated by the absorption policies and their promoters in the 1930s, by the end of that decade, anthropological fieldwork and humanitarian endeavour provided a different but equal view of Aboriginal culture and traditions, posing a serious challenge to racial exclusionism (McGregor 1997). Elkin’s anthropological inclusionist vision was perceived to be closer to an integrationist than an assimilationist one. An integrationist vision can be defined as “the process by which diverse elements can be combined into a unity while retaining their basic identity” (Thornberry 1993: 4). Thus, there is no emphasis on uniformity or elimination of all differences. On the other hand, assimilation can be defined as “the discarding of indigenous cultures in favour of the dominant one” (AIAS 2000: 23). Assimilation was to be the future of the “half-castes”, and was based on a belief that aboriginal culture had been totally destroyed. Significantly, John McEwen’s “New Deal” for the Northern Territory Aborigines, approved by the federal cabinet as the “McEwen Memorandum” in 1939, closely reflected the policies of Elkin and others working on the expansion of reserves and citizenship rights. According to Paul Hasluck, membership of the nation state depended upon the individual Aborigine breaking all familial and community bonds and by being educated and trained to live like white Australians. Hasluck’s vision did not take into consideration the importance of family, community, culture and religious beliefs. For Hasluck, social cohesion was built on goals of national unity and social conformity, and was to be brought about by policies and administrative practice which ensured the continued allegiance of the individual to the state, through the use of democratic rights and responsibilities. Hasluck’s depth and extent of attacks on Aboriginal culture and identity was less violent, as compared to the 1930s attacks on Aborigines which humanitarians had objected to. It is acknowledged that based on Hasluck’s liberalism “the intellectual breadth and cogency of his attack on Aboriginal culture and identity was, and is, unparalleled” (Thomas 2001: 24). Baldwin Spencer in his July 1913 report recommended large-scale reserves as the only way of preserving tribal Aboriginal life. Further, the report stated that no half-caste children should be allowed to remain in any native camp, but should be withdrawn from his/ her family and forcibly placed on stations. They were relegated to special homes by cruelly separating children and mothers. The entire operation was justified as aimed for the welfare of the child. This was both a racial policy and a welfare policy authorised by the Aboriginals Ordinance of 1918. In 1962 the government introduced a bill to ensure that all Aboriginals had the right to vote at federal elections. This was because of the realisation that the Aborigines were not going to die out as it had been expected. At the 1963 conference assimilation of the Aborigines was defined as all Aborigines and part-Aborigines, to attain the same manner of living as other Australians and “live as members of a single Australian community, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians” (Kelly 2001: 171). In 1965 a submission for a referendum to remove the two discriminatory provisions of the Constitution was put forth. It was agreed that Aborigines’ exclusion from the census should be deleted. The 1967 referendum has become highly misunderstood with the passage of the years. It is often wrongly reported that the referendum gave Aborigines the right to vote, and citizenship rights, when it did not. The conclusion drawn from cabinet papers and public statements is that the government saw the referendum not as the path towards a new policy but as a means of correcting ‘misleading’ impressions about racial discrimination in Australia. With Woodward’s final report, a series of bills were introduced in 1975 to provide for land rights in the Northern Territory. In 1975, it was decided to grant land ownership to the Aborigines, indicating a momentous transformation. The constitutional amendment gave the Commonwealth power to pass laws in relation to the Aboriginal people, and enable the Commonwealth to take up a degree of direct responsibility. In the 1980s there was a push for land rights along with a call for a treaty and the bid for Aboriginal self-determination. In 1992 the High Court rejected a lie terra nullius or the convenient fiction that Australia had been a land belonging to no one. Native title to land that had once belonged to Aboriginal and Torres Strait Islander Australians, in some places the legal right to it had survived the 200 years of European settlement (Kelly 2001). The national interest was served with the Bill’s passage in 1998. More than 40 percent of Northern Territory passed to Aboriginal ownership. The Act helped to rejuvenate Aboriginal custom, law and culture. But much of the land is non-economic and cannot help to improve living standards (Kelly 2001). Thus, Smith (2008) states that the Aborigines continue to be discriminated against, and do not have equal rights as citizens. By the year 2001 it was evident that neither land rights nor welfare offered a satisfactory basis for the future. Economic progress could be achieved only through productively useful skills, technology and capital in mainstream Australian economy. Conclusion This paper has highlighted the policies which deprived Aboriginal people of their social and political rights. Starting with the Commonwealth Franchise Bill 1902, through several policies and legislation, until before the 1998 Bill, the white Australians government tried to prevent land rights, and other facilities normally accorded to citizens of the country, from being available for the aborigines. Although the indigenous people’s situation as citizens is improving, with reconciliation brought about by the 1998 Bill, it was found that both sides should move forward towards a brighter future for all. According to Smith (2008), it is essential to understand why Aboriginal people consider themselves to be still under the Act, why claimants believe that native title to land causes fights between their families, and to comprehend the intricate truths underscoring these concerns. Reconciliation between the settlers and the indigenous group can help attain closure for past injustices, to the Aboriginals. One side should accept responsibility for past crimes, and apologize, while the other side aware that there can never be full restitution, decides to forgive. Kelly (2001: 193) adds that “this act of closure is not the end, but is the end of the beginning of how to live together”. Further, to achieve economic progress, the Aboriginals should be encouraged to acquire the necessary skill sets and knowledge for mainstream Australian life. Bibliography AIAS (Australian Institute of Aboriginal Studies). (2000). 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From Australian Aborigines to ‘White Australians’. Australian Aboriginal Studies, 2001 (1): pp.21-39. Thornberry, P. (1993). International law and the rights of minorities. London: Oxford University Press. Read More