mon 1415 gb3 johnson - proceedings for web/johnson_mark.pdf · qualification jack johnson does not...

AcknowledgementAcknowledgement••Thank the Traditional Custodians Thank the Traditional Custodians of this land upon which we are of this land upon which we are gathered for the opportunity to gathered for the opportunity to speak on their country;speak on their country;••Acknowledge the Spirit of all those Acknowledge the Spirit of all those who have gone before us;who have gone before us;••Acknowledge Acknowledge ALLALL Elders.Elders.

Waawidji Pty LtdWaawidji Pty Ltd 11

PURPOSEPURPOSETo discuss any To discuss any legallegal implications implications

that may pertain to Aboriginality that may pertain to Aboriginality and whether such implications and whether such implications may have effect upon students may have effect upon students and educatorsand educators


OutcomeOutcomeEncourage Aboriginal people to Encourage Aboriginal people to consider the consider the legallegal implications implications of Aboriginality in the hope of of Aboriginality in the hope of encouraging further discourse encouraging further discourse

and continuing Aboriginal and continuing Aboriginal ACTIONACTION..


QUALIFICATIONQUALIFICATION

As a proud Murri As a proud Murri -- Goorie, Jack Johnson Goorie, Jack Johnson recognises that to divorce the recognises that to divorce the legallegalimplications of Aboriginality from the implications of Aboriginality from the spiritualspiritual (birthright) implications is a task (birthright) implications is a task easier said than done.easier said than done.However, to ensure full recognition and However, to ensure full recognition and respect by mainstream Australia, the legal respect by mainstream Australia, the legal implications must be addressed, debated implications must be addressed, debated and improved upon. and improved upon.


QUALIFICATIONQUALIFICATIONJack Johnson does Jack Johnson does NOTNOT speak on behalf of other speak on behalf of other Aboriginal persons, but merely relates to his own Aboriginal persons, but merely relates to his own story, thoughts and opinions;story, thoughts and opinions;Accordingly this paper is designed to stimulate Accordingly this paper is designed to stimulate further discussion and debate;further discussion and debate;With the greatest respect to our Torres Strait With the greatest respect to our Torres Strait Islander Brothers and Sisters, who have needs Islander Brothers and Sisters, who have needs specific to their own culture, I make no attempt to specific to their own culture, I make no attempt to represent their needs here and firmly believe that represent their needs here and firmly believe that they are best represented in this sphere, by their they are best represented in this sphere, by their own people;own people;



Historical Historical Legal Legal

ImplicationsImplicationsWaawidji Pty LtdWaawidji Pty Ltd 77

MARKMARK(Jack) (Jack) WHO?WHO?


Just your Just your average Murri average Murri

horse breaking, horse breaking, Sydney solicitorSydney solicitor


INDEMNITYINDEMNITYI, I, Mark (Jack) JohnsonMark (Jack) Johnson, do hereby waiver all of my rights, where possible, under the , do hereby waiver all of my rights, where possible, under the following Common Law and Statutory areas of:following Common Law and Statutory areas of:••Discrimination;Discrimination;••Defamation;Defamation;••Torts,Torts,This indemnity applies under the following conditionsThis indemnity applies under the following conditions::This waiver will apply only to those persons in attendance at thThis waiver will apply only to those persons in attendance at the 5th National Indigenous e 5th National Indigenous Education Conference Education Conference -- Workshop titled Workshop titled ““Aboriginality: what is Aboriginality and are there Aboriginality: what is Aboriginality and are there any legal implications for Aboriginal students and/or educatorsany legal implications for Aboriginal students and/or educators”” held at the Hotel Grand held at the Hotel Grand Chancellor, Hobart on Monday, 23 June, 2009, between 14:00 and 1Chancellor, Hobart on Monday, 23 June, 2009, between 14:00 and 15:00;5:00;This waiver applies only to matters discussed during the actual This waiver applies only to matters discussed during the actual workshop specified workshop specified above; and above; and This waiver will remain in force for the periods as recognised uThis waiver will remain in force for the periods as recognised under the nder the Statute of Statute of Limitations ActLimitations Act in the jurisdiction of NSWin the jurisdiction of NSW

23 November 2009.23 November 2009.


JackJack’’ s originss originsAt Birth At Birth --

Aborigine;Aborigine;Born in Sydney, Australia;Born in Sydney, Australia;A citizen of Australia?????A citizen of Australia?????


Moira (Maria) (Great, Grand-mother)Full-blood, traditional caretaker of the land known as Tabinga

Tom Dodd (Grand-

father)

Tilly Serico (Grand-mother)

Reg Dodd

Elizabeth Lawton Daughter of Irish

Immigrant

Alex Dodd:Born with a club foot and had the nick-name Alex little jinung. Became known

as Alex Little

Jack Johnson

Rebecca Talbot (nee

Johnson)

Children

Children

Daisy Dodd (married George West)Rachel Dodd (married Percy Saltner)Jim Jim Dodd (never married)Reg Dodd (married Jessie Olzard - daughter of Tom and Susan (Bella) Johnson

Deborah Johnson (nee Smith)

Child

Jessie Olzard (Daughter of Tom and Susan (Bella) Johnson

(nee Ferguson)

Max DoddStewart DoddJoan DoddPatricia Dodd

Children

Child

Stuart Talbot

Harrilson Talbot

Child



““Does the applicant associate Does the applicant associate with aboriginalswith aboriginals………………....YESYES””““Is applicant educated...Is applicant educated...NONO””


THE TWO QUESTIONS THAT THE TWO QUESTIONS THAT PREVENTED REG DODD PREVENTED REG DODD FROM OBTAINING HIS FROM OBTAINING HIS EXEMPTION PAPERSEXEMPTION PAPERS

““In reckoning the numbers of In reckoning the numbers of the people of the the people of the

Commonwealth, or of a State Commonwealth, or of a State or other part of the or other part of the

Commonwealth, aboriginal Commonwealth, aboriginal natives should not be natives should not be

counted.counted.””Waawidji Pty LtdWaawidji Pty Ltd 1717

Section 127 Section 127 –– Australian Australian ConstitutionConstitution


The 1967 ReferendumThe 1967 ReferendumOn 27 May 1967 a Federal referendum On 27 May 1967 a Federal referendum was held. The was held. The first question, referred to as first question, referred to as the the ‘‘nexus question' was an attempt to alter nexus question' was an attempt to alter

the balance of numbers in the Senate and the the balance of numbers in the Senate and the House of Representatives. The second House of Representatives. The second question was to determine whether two question was to determine whether two

references in the Australian Constitution, references in the Australian Constitution, which discriminated against Aboriginal which discriminated against Aboriginal

people, should be removed. people, should be removed. Waawidji Pty LtdWaawidji Pty Ltd 2323

The sections of the Constitution under scrutiny were: The sections of the Constitution under scrutiny were: s51. The Parliament shall, subject to this Constitution have s51. The Parliament shall, subject to this Constitution have power to make laws for the peace, order, and good power to make laws for the peace, order, and good government of the Commonwealth with respect to:government of the Commonwealth with respect to:--(xxvi) The people of any race, other than the aboriginal (xxvi) The people of any race, other than the aboriginal people in any State, for whom it is necessary to make people in any State, for whom it is necessary to make special laws. special laws. s127. In reckoning the numbers of the people of the s127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted. Commonwealth, aboriginal natives should not be counted.

The removal of the words The removal of the words ‘…‘… other than the aboriginal people other than the aboriginal people in any Statein any State……' in section 51(xxvi) and the whole of section ' in section 51(xxvi) and the whole of section 127 were considered by many to be representative of the 127 were considered by many to be representative of the prevailing movement for political change within Indigenous prevailing movement for political change within Indigenous affairs. As a result of the political climate, this referendum affairs. As a result of the political climate, this referendum saw the highest YES vote ever recorded in a Federal saw the highest YES vote ever recorded in a Federal referendum, with 90.77 per cent voting for change. referendum, with 90.77 per cent voting for change.


ToTo--dayday’’s Legal s Legal Status of Status of

AboriginalityAboriginalityWaawidji Pty LtdWaawidji Pty Ltd 2525

Commonwealth of AustraliaCommonwealth of Australia

Six States Two (Major) Territories

Queensland Australian Capital Territory

New South Wales Northern Territory

Victoria

Tasmania

South Australia

Western Australia


No less than 63 separate and No less than 63 separate and somewhat different legal references somewhat different legal references

in law to Aborigin/e/s/al/ityin law to Aborigin/e/s/al/ityJURISDICTION STATUTORY REFERENCES

C’th of Australia 21NT 10Qld 2NSW 7ACT 5Vic 4Tas 1SA 6WA 7


Most well known legal Most well known legal definition/sdefinition/s

"Aboriginal person""Aboriginal person" means a person means a person who: who: (a) is a member of the Aboriginal race of (a) is a member of the Aboriginal race of Australia, andAustralia, and(b) identifies as an Aboriginal person, and(b) identifies as an Aboriginal person, and(c) is accepted by the Aboriginal (c) is accepted by the Aboriginal community as an Aboriginal person.community as an Aboriginal person.s4(1), Aboriginal Land Rights Act 1983s4(1), Aboriginal Land Rights Act 1983 (NSW)(NSW)


Tasmanian LawTasmanian LawAn Aboriginal person is a person who satisfies all of the An Aboriginal person is a person who satisfies all of the following requirements:following requirements:(a) Aboriginal ancestry;(a) Aboriginal ancestry;(b) self(b) self--identification as an Aboriginal person;identification as an Aboriginal person;(c) communal recognition by members of the Aboriginal (c) communal recognition by members of the Aboriginal community.community.(2) (2) The onus of proving that a person satisfies the The onus of proving that a person satisfies the requirements referred to in subsection (1) lies on that requirements referred to in subsection (1) lies on that person.person.Section 3A, Aboriginal Land Act 1995 Section 3A, Aboriginal Land Act 1995 (Tas)(Tas)


Australian ConstitutionAustralian Constitutions109 Inconsistency of lawss109 Inconsistency of laws

When a law of a State is When a law of a State is inconsistent with a law of the inconsistent with a law of the Commonwealth, the latter Commonwealth, the latter shall prevail, and the former shall prevail, and the former shall, to the extent of the shall, to the extent of the inconsistency, be invalid.inconsistency, be invalid.


“…“…accepted by the Aboriginal accepted by the Aboriginal community as an Aboriginal personcommunity as an Aboriginal person””

Unclear pointUnclear point––••Define Define ““Aboriginal CommunityAboriginal Community””••Define Define ““Aboriginal PersonAboriginal Person””


Clearly there needs to be some Clearly there needs to be some acceptance by other Aboriginal acceptance by other Aboriginal

personspersons

How many How many ““otherother”” Aboriginal Aboriginal persons constitutes a persons constitutes a ““community???community???Is Is ““one other Aboriginal Personone other Aboriginal Person””enough???enough???


““...identifies as an Aboriginal person...identifies as an Aboriginal person””

Contentious point as self identification Contentious point as self identification is very easy to obtainis very easy to obtain--

••I am an Aboriginal Person;I am an Aboriginal Person;••I can fly;I can fly;••I can communicate with God;I can communicate with God;

••I am GodI am God..Waawidji Pty LtdWaawidji Pty Ltd 3333

One for the next Generation of One for the next Generation of Aboriginal lawyersAboriginal lawyers

In In THIS INSTANCETHIS INSTANCE what if I choose what if I choose not to identify as an Aboriginal not to identify as an Aboriginal personperson--Have I just forfeited my Have I just forfeited my Aboriginality???Aboriginality???If so, is my Aboriginality forfeited If so, is my Aboriginality forfeited temporarily or permanently???temporarily or permanently???


Common legal descriptions Common legal descriptions toto--dayday

••…….member of the Aboriginal race of Australia;.member of the Aboriginal race of Australia;••Aboriginal descent;Aboriginal descent;••Aboriginal ancestry;Aboriginal ancestry;••Aboriginal person;Aboriginal person;••Aborigine;Aborigine;••Aboriginal native;Aboriginal native;••Australian native;Australian native;••Indigenous originsIndigenous origins..


“…“… member of the Aboriginal member of the Aboriginal race of Australiarace of Australia””

“…“…in order for someone to be in order for someone to be described as an Aboriginal described as an Aboriginal personperson…….some degree of .some degree of Aboriginal descent is essential, Aboriginal descent is essential, although by itself a small degree although by itself a small degree of such descent is not sufficient.of such descent is not sufficient.””

Drummond J, Gibbs v Cape well, 1995, FCADrummond J, Gibbs v Cape well, 1995, FCA



““Accordingly, if after considering all Accordingly, if after considering all of the material that is logically of the material that is logically probative of descent, the court is probative of descent, the court is satisfied that a person does not satisfied that a person does not have have somesome descent then the person descent then the person cannot be an Aboriginal personcannot be an Aboriginal person…”…”Merkel J, Shaw v Wolfe, 1998, FCAMerkel J, Shaw v Wolfe, 1998, FCA



““The terms The terms ““descended from an descended from an AboriginalAboriginal”” and and ““of Aboriginal of Aboriginal descentdescent”” refer, in my view, to lineal refer, in my view, to lineal descent. The boy involved in this case descent. The boy involved in this case will thus be an Aboriginal childwill thus be an Aboriginal child if if either of his birth parents is either of his birth parents is AboriginalAboriginal..””Campbell J, Re Simon, 2006, NSWSCCampbell J, Re Simon, 2006, NSWSC


LAWLAW

If current NSW law (If current NSW law (Re Simon, 2006Re Simon, 2006) is to be ) is to be considered as considered as ““good lawgood law”” what then of the what then of the situation where an ancestor (parent, situation where an ancestor (parent, grandparent etc) denied (sadly) their grandparent etc) denied (sadly) their Aboriginality, under law at that point in time Aboriginality, under law at that point in time they have no they have no legallegal claim to Aboriginality. claim to Aboriginality.

Is the Chain of Aboriginality severed Is the Chain of Aboriginality severed forever?????forever?????


Suggestions for further Suggestions for further considerationconsideration

••Should Aboriginality be enshrined in law Should Aboriginality be enshrined in law and protect the generations that follow?and protect the generations that follow?••If so, how do we enhance the law to If so, how do we enhance the law to further meet the needs of Aboriginal further meet the needs of Aboriginal people?people?••Who bears the responsibility to ensure Who bears the responsibility to ensure further legal needs are met?further legal needs are met?


““CLOSING THE GAPCLOSING THE GAP””

••Many believe that the gap is Many believe that the gap is actually a chasm;actually a chasm;••This chasm cannot be closed and This chasm cannot be closed and therefore must be bridged;therefore must be bridged;••ToTo--day all we have seen is jetties, day all we have seen is jetties, that end midthat end mid--chasm.chasm.


AboriginalityAboriginalityCan only be Can only be adequately adequately

addressed by addressed by Aboriginal people;Aboriginal people;


As Aboriginal people As Aboriginal people we should get on we should get on board and lets get board and lets get

the job done the job done TOGETHERTOGETHER..



mon 1415 gb3 johnson - proceedings for web/johnson_mark.pdf · qualification jack johnson does not...

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