People of the World- Aboriginal Australians

By on June 25, 2013
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The category “Aboriginal Australians” was coined by the British after they began colonising Australia in 1788, to refer collectively to all peoples they found already inhabiting the continent, and later to the descendants of any of those peoples. Until the 1980s, the sole legal and administrative criterion for inclusion in this category was race.

In the era of colonial and post-colonial government, access to basic human rights depended upon your race. If you were a “full blooded Aboriginal native … [or] any person apparently having an admixture of Aboriginal blood”, a half-caste being the “offspring of an Aboriginal mother and other than Aboriginal father” (but not of an Aboriginal father and other than Aboriginal mother), a “quadroon”, or had a “strain” of Aboriginal blood you were forced to live on Reserves or Missions, work for rations, given minimal education, and needed governmental approval to marry, visit relatives or use electrical appliances.[5]
This racial litmus test was assumed in the two references to Aboriginal people that used to exist in the Constitution of Australia. Section 51(xxvi) gave the Commonwealth parliament power to legislate with respect to “the people of any race” throughout the Commonwealth, except for the people of “the aboriginal race,” who were subject to—and only to—the laws of the particular state in which they lived. Section 127 provided that “aboriginal natives shall not be counted” in reckoning the size of the population. After both of these references were removed by a 1967 referendum, there was no longer any explicit reference to Aboriginal peoples in the Australian Constitution. Since that time, there have been a number of proposals to amend the constitution to specifically mention Indigenous Australians.[6][7]

The change to Section 51(xxvi) gave the Commonwealth parliament the power to make laws specifically with respect to Aboriginal peoples as a “race”. In the Tasmanian Dam Case of 1983, the High Court of Australia was asked to determine whether Commonwealth legislation whose application could relate to Aboriginal people—parts of the World Heritage Properties Conservation Act 1983 (Cth) as well as related legislation—was supported by Section 51(xxvi) in its new form. The case concerned an application of that legislation that would preserve cultural heritage of Aboriginal Tasmanians. It was held that Aboriginal Australians and Torres Strait Islanders, together or separately, and any part of either, could be regarded as a “race” for this purpose. As to the criteria for identifying a person as a member of such a “race”, the definition by Justice Deane has become accepted as current law.[5] Deane J said:

It is unnecessary, for the purposes of the present case, to consider the meaning to be given to the phrase “people of any race” in s. 51(xxvi). Plainly, the words have a wide and non-technical meaning [...]. The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par. (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. By “Australian Aboriginal” I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognised by the Aboriginal community as an Aboriginal.[8]

While Deane’s three-part definition reaches beyond the biological criterion, it has been criticised as continuing to accept the biological criterion as primary.[5] It has been found difficult to apply, both in each of its parts and as to the relations among the parts; biological “descent” has been a fall-back criterion

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