Other legal issues

Contributed by Dennis Eggington, Tonia Brajcich, Angela Bromfield, Diane Winter and Antonio Buto and current to 1 September 2005

DISCRIMINATION

Under the Commonwealth Racial Discrimination Act 1975 it is unlawful to racially discriminate against, or treat less favorably, a person or a group of people, because of their race or ethnic origin. This includes in relation to the refusal of access to places and facilities or the refusal to rent or sell accommodation. The Act prescribes that the provision of goods and services available to one person should be made available to all on the same terms and it provides protection against restrictions on the basis of race, of fundamental human rights.

This latter aspect of the Act forms the basis of the protection of native title recognised by the High Court in Mabo and Ors v The State of Queensland [1992] HCA 23; (1992) 66 ALJR 408 (see NATIVE TITLE & ABORIGINAL LAND AND HERITAGE).

The RDA also outlaws racial vilification. The Act, and other anti-discrimination laws, are discussed in DISCRIMINATION.

WILLS & ESTATES

Section 35 of the Aboriginal Affairs Planning Authority Act 1972 (WA) makes special provision for the administration of the estate of an intestate Aboriginal person.

BURIAL DISPUTES

Disputes about the place of burial are common for Aboriginal and Torres Strait Islander peoples. There may be customary law that specifies whose wishes should prevail. To date the courts have usually decided in favour of the surviving spouse’s wishes: see, for example, In the Matter of the Estate of Bellotti [1997] Unreported, Lib No 970594.

Sometimes Aboriginal or Torres Strait Islander relatives of the deceased will try to prevent an autopsy if this is contrary to customary law. The courts will allow this provided there are no suspicious circumstances: see for example, Re the Death of Unchango (Jnr) [1997].

DNA CASES

DNA testing involves comparing a person’s DNA sample against a population of other DNA samples. To obtain a valid result, the comparative population must be an appropriate size and comprise samples from people of the appropriate racial background.

There is considerable controversy about the accuracy of DNA testing in relation to Aboriginal and Torres Strait Islander peoples. There are two main reasons for this. One is that as a minority group, the number of comparative samples from the appropriate racial background is smaller. The other reason is that unlike many other peoples, Aboriginal and Torres Strait Islander peoples are frequently constrained by strict marriage laws and therefore do not necessarily reproduce randomly.

Expert opinion is not yet agreed on what statistical model should be used for Aboriginal and Torres Strait Islander peoples during the testing process to take these matters into account.