List of WA legislation

Legislation that applied to Aboriginal people of Western Australia from 1829.

WA Legislation that applied to Aboriginal peopleBrief description
Western Australian Act. 1829 (UK)Gave effect to the ‘settlement’ of Western Australia on ‘wild and unoccupied lands’. In his despatches to the British government, Governor James Stirling would refer to the physical occupation of land as ‘an invasion’.
An Act to constitute the Island of Rottnest a legal prison 1841 [i]Established a prison at Rottnest. The Act also stated that its purpose was to instruct Aboriginal people ‘in useful knowledge, and gradually be trained in the habits of civilised life’.
Waste Land Act (UK). 1842 [ii] (which resulted in regulations in WA)Regulated the sale of ‘waste’ lands in the Australian colonies. W.A enacted regulations in 1843. Reserves were for the ‘benefit and use of Aborigines’.
An Act to allow the Aboriginal Natives of Western Australia to give information and evidence without the sanction of an oath, 1841 [iii]Evidence admitted in court, which would allow Aboriginal people to give evidence against Europeans and each other. This was initially attached to summary punishment provisions, which aimed to prosecute Aboriginal people for the theft of settlers’ property. It was taken out of the Act on the insistence of the British government.
The Publicans Act, 1843Prohibited the supply of liquor to Aboriginal people.
An Act to prevent enticing away girls of the Aboriginal race from school or from any service in which they are employed, 1844Permission was required to remove Aboriginal girls from school or ‘service’ unless they had consent from an employer or protector. (Repealed by Aborigines Act 1905) [iv]
An Ordinance to provide for the Summary Trial and Punishment of Aboriginal native offenders in certain cases, 1849An Aboriginal male convicted of ‘any felony or misdemeanour’ could be sentenced to a whipping, of no more than two dozen lashes, as well as be imprisoned.
An Ordinance to provide for the issue of Licenses to kill Kangaroos. 1853 [v] (The Kangaroo Ordinance 1853)Licences to kill kangaroos were introduced in attempt to control large numbers being killed.
Amendment of Summary Trial and Punishment of Aborigines Act (Summary jurisdiction Act) 1859Extended period of imprisonment for Aboriginal people to three years.
An Act to regulate the hiring and service of Aboriginal Natives engaged in Pearl Shell Fishing, 1871Also to prohibit the employment of women in this industry.
The Pearl Shell Fishery Regulation Act, 1873Regulation of Aboriginal employment in pearl fisheries.
The Summary Jurisdiction Act was amended, 1874Allowed (in towns where there was only one magistrate), two or more Justices of the Peace to impose sentences of no more than six months. Definition of ‘Aboriginal native’ extended to include ‘person of whole or half blood’.
The Game Act, 1874Authorised Aboriginal people to kill native animals for food.
The Industrial Schools Act, 1874Authorised institution managers with the legal guardianship of Aboriginal workers under 21 and those children without a guardian.
The Capital Punishment Act, 1871, as amended 1875Abolished public executions but exempted Aboriginal people who could still be executed in public.
Evidence Act 1871, as amended, 1875Authorised Aboriginal interpreters to act without taking an oath. [vi]
The Wines, Beer and Spirit Sale Act, 1880Prohibited any person from selling or supplying alcohol to Aboriginal people. And prevented Aboriginal people from remaining or loitering on licensed premises.
Aboriginal Offenders Act, 1883. [vii]Enacted similar provisions to the repealed 1849 Summary Jurisdiction Act. Justices of the Peace (JP) granted power to sentence a person defined as ‘Aboriginal’ to two years jail.
The Dog Act, 1883Dogs of ‘Aboriginal natives’ could be destroyed in certain cases. Amended in 1885. It was legal for an “Aboriginal native” to have an unregistered dog, but if the number was more than the total number of people in a group, then the extra dogs were liable to be destroyed. Efforts by government for this kind of Act started in the 1840s.
The Aborigines Protection Act, 1886Established Aborigines Protection Board (APB). Officials, including Chief Protector, had increased power to regulate the employment and movement of Aboriginal people.
The Aborigines Act, 1889APB authorised to cancel work contracts in certain circumstances. Governor allowed a reserve to be created on Crown land.
The Constitution Act, 1889British Government insisted that the Constitution Act include a provision (s.70) that 5000 pounds or one percent of gross revenue (whichever was greater) was paid to the APB to assist in promoting the ‘preservation and well being of the Aborigines’.
The Aboriginal Offenders Act, amended in March 1892Aboriginal males could be punished with whipping, separate from, or in addition to prison.
The Aborigines Protection Act 1886, amended in March 1892Aboriginal natives were punished with three month’s prison and an employer fined 20 pound if they breached the contract (dealt with under the Masters and Servants Act 1892). [viii]
The Police Act, 1892Unlawful for non-Aboriginal people to be in the company of ‘Aboriginal natives’ in certain circumstances without a good reason.
The Aboriginal Offenders Act amended in 1893Maximum term of imprisonment for an Aboriginal person by a Justice of the Peace increased from 2 to 3 years (and 5 years for previous offenders).
Constitutional Amendment Act, 1893Men over 21 allowed to vote in Legislative Assembly but subject to residency rules.  Aboriginal people were specifically denied the vote unless they owned freehold property worth 50 pounds (included ‘half-bloods’).
The Aborigines Act, 1897Abolished APB, which was replaced by an Aborigines Department.
Constitution Act amended in 1898Repealed s70.
The Land Act, 1898Aboriginal people could be granted or could lease Crown land of no more than 200 acres. Governor also authorised to reserve land for the ‘use and benefit of Aborigines’.
The Fisheries Act, 1899Aboriginal inhabitants could catch fish, as long as it was in the traditional manner for food.
The Criminal Code Act, 1901-2Discretion for sentence to include whipping.
Commonwealth Constitution, 1901Section 41- interpreted to mean that only those Aboriginal people who were on the State electoral roll could vote. So in W.A. Noongars were not able to vote.
Commonwealth Franchise Act, 1902No ‘Aboriginal native’ was entitled to be on the electoral roll unless entitled under s41 of the Commonwealth Constitution.
The Dog Act, 1903An adult Aboriginal male could keep one unregistered dog if the dog was free of disease.
Mining Act, 1904An ‘Aboriginal native’ was not permitted to work on a mining tenement unless the mining Warden gave permission.
The Aborigines Protection Act, 1905Governor had power to declare or confine Aboriginal people on reserves, or remove them. See Impacts of Law.
The Electoral Act, 1907Prohibited any ‘Aboriginal native’ from enrolling as an elector, or if enrolled, from voting in an election.
The Licensing Act, 1911Aboriginal people excluded from provision of sufficient accommodation for shearers and shed hands.
The Shearers Accommodation Act, 1912Provision of adequate accommodation for shearers and shed hands was required but not applicable to Aboriginal workers employed in this capacity.
The Land Act, Amendment Act, 1935Allowed ‘Aboriginal natives’, at all times, to enter any ‘unenclosed and unimproved’ parts of the land on a pastoral lease so that they could seek ‘their sustenance in their accustomed manner’.
Native Administration Act, 1936Act implemented in response to the Moseley Commission. Established the Department of Native Affairs and permit system. It also established a court for ‘tribal aborigines’. [ix]
The Native Administration Act, amended 1941Restricted Aboriginal people from travelling across a ‘boundary line’ to prevent the spread of leprosy.
The Natives (Citizenship Rights) Act, 1944 [x]Citizenship was conditional and required proof that a person was ‘civilised’, i.e. a fit and proper person to obtain a certificate.
Commonwealth Electoral Act, 1949Aboriginal people who had completed military service were granted the right to vote in Federal elections or if they were on the State Electoral roll. [xi]
The Fauna Protection Act, 1950‘Natives’ could take fauna from Crown land (or other land with permission) for food for sustenance.
Native Administration Act, amended in 1954Some people who had been called ‘natives’ were now exempt from being called ‘native’ under the Act.
Commonwealth Electoral Act, 1962 [xii]Aboriginal people over 21 achieved the right to enrol (not compulsory) and vote at Federal elections. Western Australia passed laws that meant that Aboriginal people could vote for the first time
The Native Welfare Act, 1963Replaced previous 1905-36; and 1940-60 Acts. Department of Native Welfare created under the Minister for Native Welfare. Classified a person with one-fourth or less blood as not being Aboriginal.
Commonwealth Electoral Act, 1962 [xiii]Aboriginal people over 21 achieve right to enrol (not compulsory) and vote at Federal elections. At this point, Western Australia passed laws that meant that Aboriginal people could vote for the first time.
The Native (Citizenship Rights Act), amended in 1964Children named in parents’ certificate of citizenship could obtain their own certificate at 21.
The Commonwealth Constitution, Amendment Act, 1967Referendum to change section 51(29) authorising the Commonwealth parliament to make special laws relating to Aboriginal people and remove s127 of the Constitution so that Aboriginal people could be counted in the census.
The Liquor Act, 1970The supply of liquor to Aborigines in proclaimed areas was forbidden.
The Aboriginal Affairs Planning Authority Act, 1972Legal definition of ‘Aboriginal’ extended to someone who identifies as Aboriginal and is accepted by the community as such. Establishment of Aboriginal Lands Trust and Advisory Council.
The Aboriginal Heritage Act, 1972First Act that focused on Aboriginal cultural heritage. Aim is protection of Heritage sites of significance to persons of Aboriginal descent.
The Police Act, amended 1975Police Commissioner had power to appoint and sack Aboriginal police aides.
The Fauna Conservation Act, amended 1975‘Person’ of Aboriginal descent changed to the same meaning in the Aboriginal Affairs Planning Authority Act 1972.
Wildlife Conservation Act, 1976Included what flora and fauna Aboriginal families could take for food.
The Mining Act, 1978Allowed mining on Aboriginal reserves.
The Aboriginal Communities Act, 1979Aboriginal communities defined under AAPA given authority to control their own affairs on community land.
Fisheries Act, amended 1979A person of Aboriginal descent may take fish from any waters for food for himself and his family but cannot sell them.
Aboriginal Heritage Act, 1980Amended.
The Native Title Act, 1993 (Cth)Enacted following the Mabo decision in 1992, which recognised that Aboriginal people had native title rights that survived the assertion of British sovereignty.

References

[i] N Green and S Moon, Far from home, Aboriginal prisoners of ‘Rottnest Island 1838-1931, UWA Press, Nedlands, 1997. For information on Stirling’s despatches in the 1830s, see A. Hunter, A Different kind of subject, Aboriginal legal status and colonial law in Western Australia, 1829-1861, Australian Scholarly Publishing, 2012,  pp340-1

[ii] Amended in 1846. Note Commonwealth Acts are included where relevant to Western Australian Acts relating to Indigenous people.

[iii] A Hunter, The Origin and Debate surrounding the development of Aboriginal Evidence Acts in Western Australia in the early 1840s, University of Notre Dame Law Review, Vol 9, December 2007, 115-145. See particularly pp.141-143 on the Imperial Act that authorised local evidence legislation.

[iv] E. Russell, A History of the Law in Western Australia and its Development from 1829 to 1979, UWA Press, 1980, p320.

[v] A Hunter, A Different kind of subject, Aboriginal legal status and colonial law in Western Australia, 1829-1861, Australian Scholarly Publishing, 2012, pp340-1

[vi] E Russell, A History of the Law in Western Australia, Nedlands UWA Press, 1980, p320

[vii] This repealed the Summary Jurisdiction Act 1849 (WA) E Russell, A History of the Law in Western Australia and its Development from 1829 to 1979, UWA Press, 1980.

[viii] E. Russell, A History of Law in WA, UWAP, p.320; J. McCorquodale, Aborigines and the Law: a Digest, Australian Studies Press, Canberra, 1987.

[ix] K Auty, Broken Glass, Fremantle Arts Press, Fremantle, 2005.

[x] Compare this to Commonwealth Nationality and Citizenship Act 1948, which established that all Australian born people are citizens of Australia rather than British subjects ( http://www.aec.gov.au/Voting/indigenous_vote/indigenous.htm 17 August 2010)

[xi] Australian Electoral Commission, History of the Indigenous Vote, 2006, p6, http://www.aec.gov.au/Voting/Indigenous_vote/indigenous.htm (accessed 17 August 2010)

[xii] Ibid, Australian Electoral Commission, Timetable for Indigenous Australians, 2007.

[xiii] Ibid, Australian Electoral Commission, Timetable for Indigenous Australians, 2007.

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