A Question of Custom
The political landscape of Australia changed fundamentally with the federation of the colonies in 1901. The resulting Commonwealth of Australia was founded on a constitution that left the management of Indigenous affairs in the hands of the former colonies, now states of the Commonwealth. Until 1967 (when altered by referendum), the Constitution also omitted from national census-taking the Aborigines of the states, or at least those who were considered as wards of the states under a range of legislation for their governance (the protection regimes). In 1911, however, the Commonwealth assumed responsibility for the Northern Territory of South Australia. The region composed a large land-mass, much of it leased for pastoral production, and populated throughout by a majority of Aboriginal people, many of whom made up a large part of the labour force of the pastoral industry (McGrath, 1987). Many Aboriginal communities in northern and central Australia, however, remained remote from the settler society which dominated their future prospects. That sense of an uncompleted colonization found its way into courtrooms in the 1930s. ‘If you suggest that Australia is not in effective occupation, other nations may come along and want to take possession of it’, responded Justice Wells in the Northern Territory Supreme Court in 1933 when counsel for the Aboriginal defendant Tuckiar attempted to contextualize his client’s killing of a policeman on an island off the coast of Arnhem Land (R v Tuckiar (1934)).1
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