Asian Journal of Indigenous Studies (www.ajis.info) Vol.

1
Issue. 1
Fall 2015

Controversial issues of Aboriginals in Australia: An Analysis of Regulatory

Perspectives

Kazi Abdul Mannan1

ABSTRACT

Aboriginal dispute regulation methods generally involved families and communities.

Underlying traditional law is the concept of collective rights and responsibilities which is
different from the western focus on individual rights. Kinship relationships not only
determine a persons rights and responsibilities to another but also impact on the process used
to resolve a dispute. Families are involved in deciding the punishment because Aboriginal
law demands satisfaction between families when something wrong is done. This paper
suggests that there are controversial issues on the aboriginal to determine their proper
definition, legal system, culture, community and family.

KEY WORDS: Aboriginals, controversial issues, families, culture, communities, kinship

1
Corresponding author: Kazi Abdul Mannan, Doctoral Research Fellow, Southern Cross University, Gold Coast,
Australia, Email: mannankazi@yahoo.com

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INTRODUCTION

The word aboriginal was used in Australia to describe its Indigenous peoples as early as
1789. It soon became capitalised and employed as the common name to refer to all
Indigenous Australians. The broad term Aboriginal Australians includes many regional
groups that often identify under names from local Indigenous languages such as Koori (or
Koore) in New South Wales, Murri in Queensland, Palawah (or Pallawah) in Tasmania,
Nunga in South Australia etc. It is estimated that prior to the arrival of British settlers, the
population of Indigenous Australians was approximately 318,000-750,000 across the
continent (Year Book Australia, 2002). There were more than 250 languages spoken by
Indigenous Australians prior to the arrival of Europeans. Most of these are now either extinct
or moribund, with only about fifteen languages still being spoken by all age group
(Zuckermann 2009). Aborigines lived hunter-gatherers. They hunted and foraged for food
from the land. Aboriginal society was relatively mobile, or semi-nomadic, moving due to the
changing food availability found across different areas as seasons changed. The mode of life
and material cultures varied greatly from region to region. The greatest population density
was to be found in the southern and eastern regions of the continent, the river Murray valley
in particular.

CONTROVERSIAL ISSUES

In 1983 the High Court of Australia (Commonwealth v Tasmania 1983) defined an

Aboriginal or Torres Strait Islander as a person of Aboriginal or Torres Strait Islander
descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by
the community in which he or she lives. The ruling was a three-part definition comprising
descent, self-identification and community identification. The first part-descent-was genetic
descent and unambiguous, but led to cases lack of records to prove ancestry excluded some.
Self-and community identification were more problematic as they meant that an Indigenous
person separated from her or his community due to a family dispute could no longer identify
as Aboriginal.

As a result there arose court case throughout the 1990s where excluded people demanded that
their Aboriginality be recognised. In 1995, Justice Drummond ruled Either genuine self-

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identification as Aboriginal communal recognition as such as itself may suffice, according to

the circumstance. This contributed to an increase of 3% in the number of people identifying
as Indigenous Australians in the 1996 census when compared 1991 census (Gardiner and
Bourke: 2002).

Judge Merkel in 1998 defined Aboriginal descent as technical rather than real-thereby
eliminating a genetic requirement (Yunkaporta, 2007). This decision established that anyone
can classify him or herself legally as an Aboriginal, provided he or she is accepted as such by
his her community. As there is no formal procedure for any community to record acceptance,
the primary method of determining Indigenous population is form self-identification on
census form.

The Australian Bureau of statistics 2005 snapshot of Australia showed that the Indigenous
population had grown at twice the rate of overall population since 1996 when Indigenous
population stood at 283,000. As of June 2001, the Australian Bureau of statistics estimated
the total resident Indigenous population to be 458,520 (2.4% of Australias total), 90% of
whom identified as Aboriginal, 6% Torres Strait Islander and the remaining 4% of dual
Aboriginal and Torres Strait Islander parentage. Much of the increase since 1996 can be
attributed to greater numbers of people identifying themselves as Aborigines. Changed
definitions of aboriginality and positive discrimination via material benefits have been cited
as contributing to a movement to indigenous identification (Helen 2008).

Based on census data at 30 June 2006, the preliminary estimate of Indigenous resident
population was 517,200 where 28.65% (148,200) in New South Wales, 28.83% (146,400) in
Queensland and balance number in other Australian territories (Australian Bureau of
Statistics 2007). Although included up to the 1966 census, since 1971 there has been no
provision on the forms to differentiate full from part Indigenous or to identify non-
Indigenous persons accepted by Indigenous communities, but who have no genetic descent
(Gardiner-Garden 2000).

In 2004 former Prime Minister John Howard initiated contract with Aboriginal communities,
where substantial financial benefits are available in return for commitments such as ensuring
children attend school. These contracts are known as Shared Responsibility Agreements. This
saw a political shift from self-determination for Aboriginal communities to mutual
obligation, which has been criticised as a paternalistic and dictatorial arrangement.

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The Mutual Obligation concept was introduced for all Australians in receipt of welfare
benefits and who are not disabled or elderly. Notably, just prior to a federal election being
called, John Howard in a speech at the Sydney Institute on October 11, 2007 acknowledged
some of the failures of the pervious policies of his government and said We must recognise
the distinctiveness of Indigenous identity and culture and the right of Indigenous people to
preserve that heritage. The crisis of Indigenous social and cultural disintegration requires a
stronger affirmation of Indigenous identity and culture as a dignity, self-esteem and pride.

In 1986 report on the recognition of Aboriginal Customary law, the ALRC warned against
comparing notions of the criminal law (breach and subsequent punishment) to departures
from kinship rules and expected norms of behaviour under customary law (Australian Law
Reform Commission, 1998). Religious demography among Indigenous Australians is not
conclusive because the methodology of the census is not always well-suited to obtaining
accurate information on Aboriginal people. The 1996 census reported that almost 72 per cent
of Aborigines practised some form of Christianity; 16 per cent listed no religion. The 2001
census contained no comparable update data (Australian Bureau of Statistics-Religion, 2010).
There has also been an increase in the number of followers of Islam among the Indigenous
Australian community (Mercer, 2003).

Actually Aborigines traditionally adhered to animist spiritual frameworks. Within Aboriginal

belief systems, a formative epoch known as the Dreamtime stretches back into the distant
past when the creator ancestors known as the first peoples travelled across the land, creating
and naming as they went. Indigenous Australias oral tradition and religious values are based
upon reverence for the land and a belief in this Dreamtime.

The Dreaming is at once both the ancient time of creation and the present-day reality of
Dreaming. There were a great many different groups, each with its own individual culture,
belief structure, and language. Theses cultures overlapped to a greater or lesser extent, and
evolved over time. Major ancestral sprits include the Rainbow Serpent, Baiame, Dirawong
and Bunjil.

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CONCLUSION

In spite of above controversial issues, Aboriginal dispute (NTLRC, 2013) regulation methods
generally involved families and communities. Underlying traditional law is the concept of
collective rights and responsibilities which is different from the western focus on individual
rights. Kinship relationships not only determine a persons rights and responsibilities to
another but also impact on the process used to resolve a dispute. Families are involved in
deciding the punishment because Aboriginal law demands satisfaction between families
when something wrong is done (LRCAW 2003). Finally, we can see that there are
controversial issues on the aboriginal to determine their proper definition, legal system,
culture, community and family.

REFERENCES:

Australian Law Reform Commission (ALRC) 1998, Traditional Aboriginal Society and Its
law in Edwards WH (ed), Traditional Aboriginal Society (Melbourne: MacMillan, 2nd ed,)
217.

Australian Bureau of Statistics 2007, Population Distribution, Aboriginal and Torres Strait
Islanded Australians, 15 August.

Australian Bureau of Statistics-Religion 2010

http://abs.gov.au//Ausstats/abs@.nsf/0/AD25AA55EB7FDC75CA25697E0018FD84?opendo
cument Retrieved June 15.

Andrews, M. 2004 The Seven Sisters, Spinifex Press, North Melbourne, p424.

Commonwealth v Tasmania 1983 HCA 21; (1983) 158 CLR 1 (1July 1983)

Gardiner, G & Bourke, E 2002. Indigenous Populations, Mixed Discourses and Identities
pdf People and Place Volume 8 No 2, Monash University.
http://elecpress.monash.edu.au/pnp/free/pnpv8n2/v8n2_5gardiner.pdf Retrieved June 12,
2010.

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Gardiner-Garden, J 2000, The definition of Aboriginality. Parliamentary Library,

Parliament of Australia. http://www.aph.gov.au/LIBRARY/pubs/rn/2000-01/01RN18.htm
Retrieved June 14, 2010.

Helen, H 2008. Who Are Indigenous Australians? Quadrant

http://www.quadrant.org.au/magazine/issue/2008/451/who-are-indigenous-australians
Retrieved June 13, 2010.

LRCAW 2002, Thematic Summaries of Consultations-Midland, 16, December, 40.

Mercer, P 2003, Aborigines turn to Islam.BBC. http://news.bbc.co.uk/2/hi/asia-

pacific/2902315.stm Retrieved June 16, 2010

NTLRC 2003, Aboriginal Communities and Aboriginal Law in the Northern Territory,
Background paper no 1-21.

Year Book Australia, 2002 Australian Bureau of Statistics January 25.

Yunkaporta, Y 2007, Defining Indigenousness and asserting Aboriginal identity.

Zuckermann, Ghilad 2009, Aboriginal languages deserve revival, The Australian Higher
Education, August 26.

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