Abstract: Kornelsen, Derek; Boyer, Yvonne; Lavoie, Josee; Dwyer, Judith There is growing interest among public servants, Indigenous organisations, and scholars in Canada, Australia, and New Zealand in the idea of shifting from classical New Public Management accountability models to models that reflect mutual or reciprocal accountability as a means of delivering more effective and responsive health care to Indigenous communities. However, little progress has been made with respect to developing and implementing workable reciprocal accountability models. In this paper, we argue that a consideration of Indigenous perspectives on reciprocity and accountability is an essential, yet mainly overlooked, component of the development of effective and appropriate accountability models between Indigenous peoples and statebased funders. Indeed, many Indigenous peoples have long histories of engaging in reciprocity-based relationships with each other and their environments. Drawing from Indigenous knowledge in this regard offers novel insights that can inform how models of reciprocity are constructed and understood. More specifically, we argue that consideration of Indigenous perspectives on treaties and treaty-making as a way to interpret the substance of mutual roles and responsibilities enables a shift to models of reciprocal accountability that are based on the mutual building of long-term, trust-based relationships, while also providing a frame that emphasises the maintenance of the sovereignty of the entities that are party to such relationships.
Abstract: Blagg, Harry; Tulich, Tamara; Bush, Zoe After decades of neglect, attention in Australia has recently focused on the inter-generational impact of longterm alcohol use in the form of Foetal Alcohol Spectrum Disorders ('FASD'), and the lack of responsiveness of the justice system to the needs of persons with FASD. FASD is a non-diagnostic umbrella term encompassing a spectrum of disorders caused by prenatal alcohol exposure, including Foetal Alcohol Syndrome ('FAS'), Partial FAS ('pFAS') and alcohol-related neurodevelopmental disorder. While Australian data is limited, the prevalence of FASD in Indigenous communities is indicatively greater than non- Indigenous communities. In 2015, rates of FAS/pFAS of 12 per 100 children were reported in Fitzroy Crossing in the West Kimberley region of Western Australia.4 This is the highest reported prevalence in Australia and on par with the highest rates internationally.
Abstract: Cavanagh, Vanessa; Marchetti, Elena Australian Indigenous focused cross-cultural professional development for the judiciary is an evolving area. In other professional service sectors, such as health and education, cultural safety is becoming the benchmark. However, for the Australian justice sector cultural awareness, and to a lesser extent cultural competency, dominate discussion, and cultural safety is only an emerging discourse. Most judicial officers (indeed most Australian public servants and legal practitioners) would be familiar with the concept of Indigenous cultural awareness as part of their standard professional development training, however, the significance of cultural competency, and the application of cultural safety principles are less well recognised. This paper documents the extent to which Australian judges and magistrates are trained or guided in accommodating the cultural needs of Indigenous courtroom participants. In particular, we review and critique the extent to which Indigenous specific cross-cultural education (in the form of short courses, seminars, conferences, cultural immersion tours, site visits, and as contained in bench books) is currently available for Australian judicial officers. In documenting current practice, we consider whether cultural awareness, cultural competency or cultural safety can be achieved by way of current judicial training and court practice guidelines. Taking into account the experiences of all Indigenous participants in the courtroom, as well as the fact that the over-representation of Indigenous offenders in the Australian criminal justice system continues to be a significant and complex issue, we conclude that it is necessary for judicial officers to be equipped with the capacity to ensure that their courtrooms are culturally safe when having to accommodate the needs of all Indigenous participants.
Abstract: Bartels, Lorana; Bolitho, Jane; Richards, Kelly This article presents the findings of a component of the National Assessment of Australia's Children's Courts (the 'national study'). Specifically, this article focuses on the perceptions of magistrates in the New South Wales (NSW) Children's Court ('NSWCC' or the 'Court') in relation to the issues facing Indigenous young people in the Court's criminal jurisdiction generally, and the potential of Indigenous youth courts more specifically. Part II outlines the method for the national study from which this article stems, as well as the method for the NSW component of the study. Part III provides an analysis of NSWCC magistrates' perceptions of challenges and reforms in the Court's criminal jurisdiction as they relate to Indigenous young people specifically, and discusses our analysis in light of findings from the national study from other states and territories. Finally, Part IV briefly considers the key findings of our analysis in light of the current Koori Youth Court pilot.
Abstract: Webb, Raelene '[T]he Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.' On 3 June 1992, with those words, it is said that the High Court freed Australia from the concept of 'terra nullius'. The decision in 'Mabo' that the common law recognised and protected Indigenous rights in land that existed at the time Britain acquired sovereignty was truly a watershed moment in Australian legal history, shaking the foundation of land law on which British claims to possession of Australia were based.
Abstract: Maxwell, Jack Customary law is an integral part of the lives and identities of Indigenous people across contemporary Australia. But its existence alongside Australian criminal law raises complex questions of law and political morality. It seems difficult to reconcile these two systems of law with the principle that all Australians stand equal before the law, and the intuition that people should not be subjected to different criminal sanctions on the basis of race or ethnicity.
Abstract: Leeson, Sjharn; Rynne, John; Smith, Catrin; Adams, Yolonda The over-representation of First Peoples, generally, and women specifically, in Australian prisons is beyond debate. However, Australia has seen a revalorisation of the prison and punitive measures like incarceration as the primary solution to social problems and social disadvantage, despite an array of abolitionist and prison rights campaigns, particularly across New South Wales and Victoria, that have impacted upon governmental and correctional penal reform policies.
Abstract: McCabe, Patrick The failure of Australian native title jurisprudence to develop any scope for the recognition of commercial native title rights has been much lamented. This article first briefly summarises that failure, and then turns to describe the Akiba litigation that culminated in the High Court's 2013 decision of 'Akiba v Commonwealth' ('Akiba HC'), and explains how that decision presents an opportunity at last to develop the jurisprudence in a direction more amenable to the recognition of commercial native title rights. I briefly note that the opportunity has not been seized in some recent native title judgments, probably because they were mostly argued prior to 'Akiba HC', before proceeding to discuss the 2014 Federal Court cases of 'Willis on behalf of the Pilki People v Western Australia' ('Pilki'), and 'BP (deceased) on behalf of the Birriliburu People v Western Australia' ('Birriliburu'), the former of which has now been upheld by the Full Court of the Federal Court. These decisions represent the first fruit of the tortuously slow development of the jurisprudence in this area. This article attempts to glean some lessons from those cases that can be applied to future claims for commercial native title rights, before finally looking to the practical ramifications of this development in the law.
Abstract: Koutouki, Konstantia In the preamble of the 2001 Stockholm Convention on 'Persistent Organic Pollutants' we find the following acknowledgement: ' that the Arctic ecosystems and Indigenous communities are particularly at risk because of the biomagnification of persistent organic pollutants and that contamination of their traditional foods is a public health issue'. The vulnerability of the Indigenous populations of the Arctic to persistent organic pollutants ('POPs') was an impetus behind the 'Stockholm Convention' and although the relationship between POPs and the health of Indigenous peoples, especially children and the unborn, has been known for a very long time, there has been little in terms of legislation and public policy initiatives to diminish toxic chemicals in the food and natural environment of the Inuit. In addition to POPs, the children and adults of the Arctic communities are also disproportionately exposed to heavy metal contamination due to the presence of mercury, lead and cadmium, among others. In 2013, the 'Minamata' Convention on Mercury was adopted, under the auspices of the United Nations Environment Programme ('UNEP') and building on the 1998 to the 1979 Convention on Long-Range 'Transboundary Air Pollution on Heavy Metals'. Given the long-term effects on the Inuit of these substances, it begs the question whether this situation is in fact a crime against future generations of the Inuit.
Abstract: Vivian, Alison; Jorgensen, Miriam; Reilly, Alexander; McMillan, Mark; McRae, Cosima; McMinn, John Aboriginal and Torres Strait Islander peoples of Australia face a curious conundrum. Their continued existence and continuing sovereign obligations to Country, culture and community are self-evident. Yet the Australian national narrative is that Indigenous sovereignty was extinguished at the time of the arrival of the British 'settlers'. Today Australian mainstream law suggests that Aboriginal and Torres Strait Islander people exist as peoples only for purposes, and against criteria, determined by state and federal governments. In other words, apart from limited and highly circumscribed opportunities created through native title, cultural heritage laws and some states' land rights systems, the Australian state neither acknowledges Aboriginal and Torres Strait Islander peoples' status as distinct political collectives (nations, societies, communities, or however else they prefer to describe themselves) nor recognises their inherent rights to self-governance. While they consistently have advocated for this recognition - through the Yirrkala bark petitions, the Barunga Statement, the Aboriginal Tent Embassy, and most recently in the Uluru Statement from the Heart - nation-to- nation and government-to-government relations have not become an aspect of Australian mainstream law. This lack of legal status for Aboriginal and Torres Strait Islander collectives results in serious constraints on their self-governing capacity, constraining the scope of their jurisdiction and limiting the potential of Indigenous governing institutions.
Abstract: Maurus, Julia From 1 January 2015, trustees of Aboriginal and Torres Strait Islander land in Queensland have had the option of making available ordinary freehold land title ('freehold option'). In order to grant freehold title in these remote communities, where land is held communally in trust, native title must be extinguished.
Abstract: Ali, Paul; Kourabas, Steve; McRae, Cosima; Ramsay, Ian Consumer leases offer low-income consumers the option to hire household items that they do not have the money to purchase upfront. They are marketed by consumer lease providers ('Providers') as a cheap way to purchase important household items. However, recent studies illustrate that the price ultimately paid to hire goods under a consumer lease contract will generally exceed the retail value of the goods hired and that it is the most expensive form of finance available.1 Despite this, consumers are often persuaded to enter into consumer lease contracts as a result of predatory practices engaged in by Providers. These predatory practices are most effective with low-income consumers who may be experiencing financial difficulties and who live in remote areas that make it difficult to shop for alternative goods or seek financial and legal advice.
Abstract: Miller, Aleksandra The ongoing impacts of colonisation have 'direct and immediate relevance to both criminal behaviour and to processes of criminalisation' of Indigenous people in Australia. Decolonising, that is, addressing or reversing the impacts of colonisation, is necessary to improve the way in which the criminal justice system interacts with Indigenous people, and to reduce the shameful rates of Indigenous incarceration. In this article, I suggest that Neighbourhood Justice Centres ('NJC'), a type of problem-solving court focussing on community engagement, may be part of the solution. I propose that they can operate as a decolonising agent by facilitating Indigenous empowerment and self-determination.
Abstract: Storey, Matthew Some level of legislative protection of Indigenous cultural heritage is a feature of all Australian jurisdictions at a state (or territory) and Commonwealth level. The Victorian 'Aboriginal Heritage Act 2006' ('AHA') is often regarded as an example of one of the most effective of such regimes due both to its integration with the processes under the 'Native Title Act 1993' (Cth) and its recognition of the appropriately central role of traditional Aboriginal owners in managing their heritage.
Abstract: Lee, Emma; Richardson, Benjamin J At Melaleuca, in the remote southwest of the Tasmanian Wilderness World Heritage Area ('TWWHA'), visitors may encounter the Needwonnee Aboriginal Walk. Established in 2011 by the Tasmanian Parks and Wildlife Service in consultation with the Tasmanian Aboriginal Land and Sea Council, the Walk is an interpretive nature trail over 1.2 kilometres that educates visitors about the lives of this ancient Aboriginal culture and their environs. Most of the interpretive installations are ephemeral, fashioned from organic materials in the local landscape, and include huts, tools, baskets, shell necklaces and a paperbark canoe. The area today is unoccupied except for the few intrepid tourists seeking an iconic 'wilderness' experience. Despite the good intentions behind creation of the Needwonnee Aboriginal Walk, it conveys the impression of a past or extinct culture now memorialised in an outdoors museum, without any voice and no longer heard. Yet many Aboriginal representatives in Tasmania see the TWWHA as 'belonging to a much larger living cultural landscape and seascape' that should be managed jointly with Aboriginal communities.
Abstract: O'Bryan, Katie In September 2017, the 'Yarra River Protection' (Wilip-gin Birrarung murron) Act 2017 was passed by the Victorian Parliament. Described by the government as 'Landmark Legislation' and 'an Australian first', an essential element of the Act is the creation of the Birrarung Council, a statutory body to be the 'independent voice for the river'. Of significance for Indigenous involvement in river management is the mandatory requirement for Traditional Owner representation on the Council.
Abstract: Whittaker, Alison Legal Aboriginality is a contemporary catalyst point for the relationship between settler law and Aboriginal persons. Through constructing a legal Aboriginal personhood, Australian settler colonial legal systems make major contributions to understanding their foundations relative to the Indigenous peoples they constructed these foundations upon. The current model, comprising three tiers of self-identification, community-identification and descent, is an attempt to capture a legal Aboriginality that closely mirrors Aboriginal self-understanding. Although occasionally outwardly determined by the courts, this definition of Aboriginality increasingly turns inward as a model for determining the membership of Aboriginal statutory bodies, Aboriginal Lands Councils ('ALC') and Aboriginal Corporations ('AC'), those same bodies also conferring Confirmations of Aboriginality for administrative purposes.
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