Native title essay

Law reform is the process that reviews existing laws and recommends or introduces changes to them, with
the aim of improving justice and efficiency. Native title is the right of indigenous people to have possession
over their lands and use their traditional lands. Law reform is effective to some extent in achieving just
outcomes in regards to native title. In the 17th century, Captain Cook colonized Australia and declared the
land terra nullius then the Aboriginal people were then forcibly removed from their land. This essay will
discuss various cases and legislations that have been introduced to establish land rights for aboriginal
people.

In 1967, a referendum took place in Australia where more than 90 percent of Australian voters chose to
count Aboriginal and Torres Strait Islander (ATSI) people as members of the Australian nation. This
referendum is effective as it ensures that Aboriginal people are accepted and given recognition as
Australians. This effectively provides them with a national identity; portraying the progressive nature of the
Australian government and legal system. As such by granting aboriginal people citizenship, aboriginals are
more inclined to start asking for more rights in other areas such as land rights. The Gove land rights case
(1971) was the first case in which an Aboriginal tribe had sought to have land rights recognized by courts. In
1963 the Yolngu people were opposing the establishment of a bauxite mine on their land; claiming native
title rights to this land. Justice Blackburn rejected the argument stating that Australia had been settled by the
British therefore the doctrine of reception applied. Blackburn observed that the Yolngu people had a
complex social and legal system which commanded respect and careful attention. His conclusion was that
the Yolngu people did indeed have a government body and a legal system in place; which then declared the
doctrine of terra nullius as legal fiction. Although the Yolngu people were unsuccessful in proving
ownership over the land, declaring the doctrine of terra nullius as legal fiction is significant in recognizing
the aboriginal people as the original inhabitants of the land and empower them to continue lobbying for land
rights.

In the Mabo Case (1992) the Merian people were fighting for native title over the Murray islands. The court
highlights that the Merian people did have a government system, a legal system based on customary law and
a complex social system. As a result of the Merian people having all three of these things, the doctrine of
terra nullius was nullified. The prove ownership over the Murray Islands Eddie Mabo had to prove an
ongoing connection physically, culturally and spiritually such as evidence of the dreamtime, artworks on
caves or burial sites on the land. Mabo was successful in proving all three connections and therefore the
judge ruled that the land did in fact belong to the Merian people and they were awarded ownership over the
land. As a result of the Mabo decision, the federal government enacted the Native Title Act 1993. The
purpose of this act is to provide recognition and protection of native title, establish ways in which future
dealings that affect native title may proceed and set standards for these dealings and establish a mechanism
for determining native title claims. This further recognises this group as the original custodians of the land
granting them the right to fight for possession over the land. This adheres to the community standards such
as equality as it grants them the right to ownership and possession of the land same as the white British
inhabitants. As well as fair treatment and justice before the law. However, these rights to the land are not
automatic. The act requires the ATSI people to fight for land rights in court and prove an ongoing
connection to the land to gain possession of it. However, this is a difficult process. This is because crown
land was either leased for pastoral purposes or sold as well as the fact that land has been built over as such
this prevents individuals from trespassing preventing them from establishing an ongoing connection with the
land and inhibits the process of gathering evidence form the land to prove that ongoing connection. Thus,
the legislation makes it difficult to gain ownership; hindering accessibility to the land.
The native title amendment act (1998) was introduced to reduce the amount of native title claims in court.
The Howard government in 1996 marked a change in policy known as the ten-point plan. The provisions of
the act included native title extinguishment. Any land that was owned before January 1st 1994 can’t be
claimed by indigenous tribes, this created a problem because by this time a lot of crown land had already
been sold to private owners for the purpose of farming, cultivation and building in the land. The legal system
is reducing the amount of land that indigenous tribes are able to claim, making it almost impossible for some
tribes to ever gain possession over these lands again. The act also said that the tribes claiming ownership
still have to prove an ongoing connection to the land spiritually, culturally and physically. They have to
prove a connection from the time individuals from tribe were removed from the land to the time of the
claim. In the Yorta Yorta case (2002) the Yorta Yorta Aboriginal community applied to the federal court
claiming native title to an area of land and waters in northern Victoria and southern NSW. The federal court
dismissed the claim on the grounds that the tribe ceased to occupy their traditional land in accordance with
their traditional laws and customs before the end of the 19th century. Justice Olney ruled that history has
indeed washed away any real acknowledgement of their traditional laws and any real observance of their
traditional customs. The Yorta people appealed to the high court and the high court ruled that in order to
prove native title, the claimants must prove that there has been and acknowledgement and observance of
laws and on as substantially uninterrupted basis since sovereignty. This act was introduced in response to the
rising number of cases involving indigenous groups asking for land rights. This is because of the increasing
fear that was triggered by the Mabo decision in 1992 amongst the wider community. This is effective in
adhering to community standards by protecting the rights of the Australian/Britain population to the land so
that they can continue using it for farming and cultivation purposes to assist social and economic
development of the country as a whole. This act has effectively lacked responsiveness to the needs of
indigenous groups by inhibiting their ability to re-connect with the land of their ancestors and contributes to
unfair treatment and injustice.
 Sexual assault essay

Sexual assault is a general term for criminal offences involving unwanted sexual contact; acts involve
unwanted touching, groping, indecent act of any other kind and rape. Law reform is effective to some extent
in achieving just outcomes in regard to sexual assault. According to the media article ‘sexual assault: how
common it is in Australia?’ (SBS news 2015) states that Australia has one of the highest rates of reported
sexual assault in the world, but support workers say that the number of offenders facing court and receiving
prison sentences is too low. “Australia has one of the highest rates of reported sexual assault in the world at
almost 92 per 100000 of the population”. This pressured the Australian government to introduce new laws to
protect the victim. This essay will discuss various media articles, cases and legislations to prove that law
reform is effective to an extent in achieving just outcomes for victims of sexual assault and reducing rates of
crime.

In 2001, the only applicable offence for sexual assault was ‘aggravated sexual assault’. The maximum
penalty for this was 20 years imprisonment. In the case R v AEM; R v KEM; R v MM (2002) was the
catalyst for change. In this case three young men lured two 16-year-old girls who were waiting for a taxi to
the offender’s home in Villa wood where they were forcibly detained and sexually assaulted over a period of
several hours. The girls were also threatened with knives and verbal death threats. At the time that the crime
was committed the only applicable crime was aggravated sexual assault where the maximum penalty was 20
years imprisonment. The three men were sentenced to five and six years each. The public, knowing the
nature of these crimes, express disagreement and concern over the existing laws of rape which were thought
to be lenient. Following this case, the NSW government moved quickly to introduce new laws and tougher
penalties. An amendment was made to the NSW laws in 2002, with the insertion of section 61JA to the
crimes act 1900. This included the insertion of aggravated sexual assault in company. This amendment
aimed to recognize the need to pass harsh laws against gang rapists and it increased the maximum penalty to
life imprisonment with a non-parole period of 15 years. Reform effectively put in place harsher penalties for
perpetrators of sexual assault which effectively set a deterrence and reduced rates of recidivism. This
adheres to the community standards by ensuring safety and security by ensuring that serious offenders are
Imprisoned, and a general deterrence is set. This act also achieves justice for the victim by adequately
compensating them for the injuries incurred as a result of the crime.

During the R v Skaf trial 2000, two jurors went to investigate the crime scene at Gosling park, to
investigate the lighting around the toilet area. This is jury misconduct as such the judge removed the jury
and empaneled a new one. This calls for a retrial. Laws at the time required that evidence and witness
statements need to be presented all over again the retrial. The victims refused to do so because of fear and
increased emotional and mental trauma that is likely to occur as a result. In response the government
introduced The Criminal Procedure Amendment (evidence) Act 2005 (NSW) allows a transcript or
recording of a complainant’s evidence in any retrial. If the evidence is admitted in the retrial, then the
complainant cannot be forced to give further evidence, unless he/she decides to do so. This then led to a
further amendment which then became ‘The Criminal Procedure Further Amendment (evidence) Act
2005 (NSW) which stated that under this act certain provisions where designed to ensure that improper
questions were not put to the complainant during cross examination. It also provides for evidence to be
given in camera and for support people to be close to the complainant when giving evidence. In the media
article ‘new law may allow Skaf retrial’ (SMH 2005) states that the new law is likely to result in an unfair
trial and therefore an unfair conviction. The reforms effectively adhere to the needs of the victim by
preventing face to face contact with offender. This ensures that provisions are put in place and emotional,
mental trauma is averted as well as ensuring that the victim feels safe and secure during trial proceedings.
However, the act fails to balance the rights of the offender by allowing the victim to give evidence privately
in a comfortable environment. This may lead to exaggeration of facts and testimony regarding the case as
well as hinders the ability of defence lawyers to cross examine and determine the credibility of the witness.
The media article ‘New Law May Allow Skaf Retrial’ (SMH 2005) states that such provisions can lead to an
unfair trial for the accused. This can lead to wrongful convictions or higher sentences leading to a
miscarriage of justice.

The Crimes Amendment (Consent-Sexual Assault Offences) Act 2007 (NSW) states that a lack of
consent from an individual constitutes to rape. It also states that if someone is under the influence of alcohol
or drugs, they dint have the capacity to give consent. At the same time of the amendment the burden of proof
for sexual assault cases also changes. Now the burden of proof lies with the defendant. The legal argument
in sexual assault cases becomes based on whether consent was granted by the victim to the alleged offender,
which is difficult to prove and can be reasons for low conviction rates amongst offenders. The media article
‘rape of woman in skinny jeans ‘not possible’ (SMH 2010) discusses whether a woman wearing skinny
leg jeans can be raped or are they too tight to be taken off only with her consent. Nicholas Gonzalez was
accused of raping the 24-year-old women. The jury collaborated about whether Gonzalez could have taken
off her jeans without any sort of collaboration. Mr. Gonzalez was found innocent as he could not have taken
off the woman’s skinny jeans without any sort of help. The act in ineffective as it places the burden of proof
on the offender. This creates an imbalance of rights as it infringes on the human rights of the alleged
offender that is innocent until proven guilty. This can lead to a lack of procedural fairness and an unfair trial
which may result in wrongful conviction. However, by placing the burden of proof on the offender this can
act a s a deterrence to other potential offenders because they are now perceived to be guilty in the eyes of the
system. Also, by placing the burden of proof off the victim, the legal system is responding to the needs of
the victim by reducing trauma that is likely to occur in the event that the victim is liable to prove the case
and the stress associated with finding enough evidence to prove the case. This adheres to community
standards by ensuring that court trials effectively provide support and adhere to the needs of the victim.