Aboriginal people and the law

The Library has a wide range of online resources - journal, magazine and newspaper articles, and and a growing collection of ebooks.

To search for articles choose 'articles' from the dropdown list next to the Search box.

They are all available onsite and most are also available off site to Victorian registered users.

In Victoria, the main legislation in force today:

• Aboriginal Heritage Act 2006
• Magistrates' Court (Koori Court) Act 2002 - more on the court here
• Traditional Owner Settlement Act 2010.

The Adoption Act 1984 and Children, Youth and Families Act 2005 include sections relating to Aboriginal people

A list of current legislation with links to full text is available through the Austlii Australian Indigenous Law Library for Victorian and Commonwealth jurisdictions (and other states and territories).

In 2004 an amendment to the Constitution of Victoria acknowledged that the original Constitution Act was drafted without consultation, involvement or recognition of Aboriginal people. With the proviso that this section does not give rise to any legal claim, or affect the interpretation of any laws, the Constitution now states that:

(S.2) The Parliament recognises that Victoria's Aboriginal people, as the original custodians of the land on which the Colony of Victoria was
established -
   (a)  have a unique status as the descendants of Australia's first people;
        and
   (b)  have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and
   (c)  have made a unique and irreplaceable contribution to the identity and well-being of Victoria.

Following on from recommendations in the Victorian Aboriginal Justice Agreement and seeking to improve outcomes for Aboriginal people in the legal system, the Koori Court was established in Victoria in 2002 under the Magistrates' Court (Koori Court) Act 2002.
The Koori Children's Court began operating in 2005. Also known as circle sentencing, the system was first introduced in Canada in 1992 and now operates in other Australian jurisdictions.

The courts operate within the Magistrates Court both in Melbourne and regional Victoria.  A magistrate chairs the hearing, and Elders, respected persons and family members can be included. The victim can attend, or present an impact statement. 

This approach to sentencing has been the subject of several evaluations, relating to Victoria, other Australian jurisdictions and international experiences:

• Elena Marchetti,  Indigenous sentencing courts.
• Allan Borowski. Evaluating the Children’s Koori Court of Victoria: some key findings.
• Dante Mavec. The appropriate place of Indigenous sentencing courts in the Australian criminal justice system.
• Lawrence W Sherman and Heather Strang. Restorative justice: the evidence.
• Evaluation of the Queensland Murri Court - final report. The Court was abolished by the Queensland government in 2012.
• Indigenous issues and Indigenous sentencing courts - from the Australian Institute of Judicial Administration.
• Zoe Dawkins, Martyn Brookes et al. Koori County Court.

Principles of dispute resolution have also been incorporated into native title deliberations, with a 2007 amendment to the Native title act encouraging a negotiated outcome.  Assistance is provided both through the Federal Court and the National Native Title Tribunal.

"The protection and control of significant cultural sites and forms are related to broader legal issues concerning cultural identity, self-determination and political sovereignty. In particular, the law relating to Indigenous cultural heritage cannot be separated from the issue of land rights and the social, political and economic implications of the loss of those rights over the course of European settlement." [1]

"Heritage consists of the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous people and passed on by them as part of expressing their cultural identity...The heritage of an Indigenous people is a living one and includes items which may be created in the future, based on that heritage. Any definition of Indigenous Cultural and Intellectual Property should be flexible to reflect the notions of the particular Indigenous group and the fact that this may differ from group to group and may change over time." [2]

Heritage legislation - Victoria

The Archaeological and Aboriginal Relics Preservation Act No. 8273 1972 established legal protection for "any Aboriginal deposit, carving, drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation." The Act established a Protector of Relics, a register of Aboriginal heritage and an advisory board of anthropologists, archaeologists and bureaucrats - with one position identified for an Aboriginal person. The Archaeological and Aboriginal Relics Office was created, later the Victoria Archaeological Survey.

This body undertook many projects to identify and record archaeological heritage - including over 40 relating to Aboriginal people and places. This legislation formalised the view of a culture frozen in time and the importance of the anthropological-archaeological perspective - rather than the protection of a living culture for its peoples.

In 1984 the Commonwealth enacted the Aboriginal and Torres Strait Islander Heritage protection act, to cover the Commonwealth and states. A 1987 amendment (since repealed by new Victorian legislation) - inserted a section that related just to Victoria, giving Aboriginal people a greater role in the protection of their heritage. 

The Victorian  Aboriginal heritage act (2006) aligns heritage issues more closely with planning and development systems, with VCAT as the arbiter in the event of disputes. It creates the Victorian Aboriginal Heritage Council (membership to consist of 11 Aboriginal people), Registered Aboriginal Parties to include Aboriginal people in decision making and a system of permits and management plans.

To be a cultural adviser, the person must be appropriately qualified in a discipline such as anthropology, archaeology or history; or have extensive experience or knowledge in relation to the management of Aboriginal cultural heritage. Some commentary on the implementation of the act is available through our journal databases - available on line and/or in hard copy inside the Library, and off site to Victorian registered users.

Some Indigenous Land Use Agreements under the Native title act have been negotiated to include cultural heritage protection.

Useful links and further reading:

• Caring for culture - produced for the Aboriginal Lands Council, NSW. An overview of cultural heritage protection regimes in Victoria, South Australia and Queensland.
• Aboriginal cultural heritage - research papers, act and regulations, Aboriginal Heritage Council and the Victorian Aboriginal Heritage Register.
• Indigenous heritage legislation - Commonwealth and states.
• Cultural property protection, law and legislation
• Aboriginal Australians -- Legal status, laws, etc. 

  ---

1. S. Sullivan and BW Boer quoted in Aborigines. Laws of Australia. Vol. 1 Ch.1.4 Cultural heritage. (Sydney: Law Book Co., 2003-) p.101
2. Terri Janke. Our culture - our future. (Surrey Hills, N.S.W. : Michael Frankel & Company, Solicitors c1998) p. xvii-viii

Indigenous intellectual and cultural property protocols seek to identify, acknowledge and protect the rights of communties to their cultural and intellectual heritage. The nature of these resources, their creation and dynamic nature sits outside a western legal tradition of ownership and property rights and so to avoid appropriation and exploitation, processes are being established to allow communities to devise terms for their benefit.

• Indigenous intellectual property - books in State Library Victoria collections.
• Traditional Knowledge - from the World Intellectual Property Organization
• First Nations arts and culture - from the Australia Council for the Arts.
• Arts Law: Artists in the Black - a legal service for Indigenous artists, communities and arts organisations.

• Aboriginal Australians and treaty - books in the State Library collections. 
• The Agreements, Treaties and Negotiated Settlements project includes a database of settlements negotiated between indigenous peoples and governments with historical background and legislative references.
• Honour among nations is a collection of papers discussing treaty and decision making with Indigenous peoples in Canada, New Zealand and  South Africa.

• Victorian Aboriginal Legal Service - founded in 1973, the service provides legal advice, support and representation for Aboriginal people, advocates for social justice and for the review of discriminatory legislation..
• Burra Lotjpa Dunguludja - Victorian Aboriginal Justice Agreement -  provides the framework for initiatives and  programs which aim to improve outcomes for Aboriginal people in the justice system.
• Indigenous Justice Clearinghouse - a shared project between the Commonwealth Attorney Generals Department and the Institute of Criminology, this site includes links to publications, programs, projects and latest news. It seeks to inform policy makers by collating a range of material and data relating to Indigenous Australians and the justice systems.
• First Peoples - State Relations - Victorian government department.
• Supreme Court Library - Indigenous law research, guide.

• The laws of Australia provides a detailed survey of all aspects of Australian law referring to history, legislative developments and case law. Volume 1 relates to Aboriginal and Torres Strait Islander peoples. It includes coverage on Aboriginal people and the constitution, Aboriginal customary law, land law, cultural heritage, criminal and civil justice issues, international law and Indigenous cultural and intellectual property.
• From the Library collection - Aboriginal people and law - includes customary law, land tenure, human rights.
• Citizens without rights : Aborigines and Australian citizenship - traces history of administrative and government practices, including Victoria in detail and effects on citizenship rights.

The report from the Royal Commission into Aboriginal Deaths in Custody made recommendations to address Indigenous over-representation in the judicial system and has informed many of the developments in the legal system. The library holds many related publications.

Reconciliation march, John Spooner, H2005.73/3
This image is in copyright.

Aboriginal and Torres Strait Islander Social Justice includes links to projects - current and past, news and publications.