Library Guides: Indigenous Law (Australia): Cases and Indigenous courts

Cases

Australian Case Law
For detailed information about researching Australian case law, including finding all cases on a topic or legislative provision, refer to our Australian Case Law research guide. In addition, the following specific resources will help you research Australian Indigenous case law.

Finding leading cases on a topic

Use secondary sources such as books and commentary. For example, Native Title (in Halsbury's Laws of Australia on Lexis + Australia) and Aborigines and Torres Strait Islanders (on Westlaw AU) are arranged by topic. The commentary in each topic refers to significant and noteworthy cases.

Finding all case on Indigenous issues

The Indigenous Law Library
The Indigenous Law Library on AUSTLII (open access) includes the following databases:
High Court of Australia Decisions Concerning Indigenous Issues
Federal Court of Australia Decisions Concerning Indigenous Issues
Other Australian Indigenous Law Cases

Courts dealing exclusively with Indigenous mattters

Federal

The National Native Title Tribunal
The National Native Title Tribunal was established in 1994. It makes decisions, conducts inquiries, reviews and mediations, and assists parties with native title applications and Indigenous land use agreements (ILUAs). Decisions of the Tribunal are available on open access:
Jade
1996 to current
AustLII
1994 to current
Native Title Act 1993 (Cth)
A decision of the Tribunal can be appealed on a point of law to the Federal Court of Australia (s 169(1) Native Title Act 1993 (Cth))
History of NNTT
See more about the Tribunal here including its history, development and significant cases.

State and territory

Victorian County Koori Court

Currently, Queensland, NSW, South Australia and Victoria have Indigenous sentencing courts for summary offences (at the Magistrates and Children's Court levels). The Victorian County Koori Court is the only sentencing court for Aboriginal and Torres Strait Islander offenders in an indictable jurisdiction in Australia. Indigenous sentencing courts do not practice or adopt Indigenous customary laws: they use Australian criminal laws and procedures to sentence Indigenous offenders. However, they allow Indigenous Elders and Respected Persons to participate in the process, with the intention of creating a more culturally appropriate forum for sentencing Indigenous offenders

Decisions of these courts are included in databases that contain judgments of lower-level courts.

For information on these courts, see for example the following open access publications:

'Specialist Courts and Diversion Programs' in Incarceration Rates of Aboriginal and Torres Strait Islander Peoples
Discussion Paper No 84, Australian Law Reform Commission, 2017. This section discusses the Victorian Koori Courts, NSW Circle Sentencing, Queensland Murri Courts, and South Australian Nunga Courts.
'Other Specialist Courts, Lists and Diversion Programs' in Pathways to Justice – Inquiry Into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples
ALRC Report 133, 2018.

Ally author

Elena Marchetti, 'Indigenous Sentencing Courts'
Research Brief No 5, Indigenous Justice Clearinghouse, 2009. This publication includes a Table of all Indigenous courts and their enabling legislation.

In addition, there are many initiatives to seek to make the court process more responsive to the needs of Indigenous participants. For example, there are Aboriginal legal and victim support services and judicial education, including judicial bench books, to educate judicial officers about interacting with Aboriginal and Torres Strait Islanders in court and sentencing Indigenous offenders. For more information, see:

Ally authors

Bartels, Lorana, 'Indigenous-specific Court Initiatives to Support Indigenous Defendants, Victims and Witnesses' Research Brief No 17, Indigenous Justice Clearinghouse, 2015. This brief highlights some current initiatives in operation in Australian courts which seek to make the court process more responsive to the needs of Indigenous participants, along with some examples from New Zealand and Canada. Further sources of support, for example Aboriginal legal and victim support services and judicial education, including judicial benchbooks, are also considered, along with issues around language and communication. While it is acknowledged that most of the initiatives described have not been formally evaluated, some initiatives have been identified as examples of good or promising practice which can provide lessons for policy makers.
Anthony, Thalia and Elizabeth Grant, 'Courthouse Design Principles to Dignify Spaces for Indigenous Users: Preliminary Observations' (2016) 8(1) International Journal for Court Administration Historically, Australian court architecture layout, design and details are intimately tied to the physical aspects of British imperial institutions. Displaying the visual features of the Empire’s institutions has the effect of alienating Indigenous people within courts. This is compounded by design that is oblivious to the needs of Indigenous users and consequently places these users in situations that threaten their privacy, safety and wellbeing. This article contends that architectural design that seeks to accommodate Indigenous cultural and socio-spatial needs brings into sharp relief the barriers and harms otherwise confronting Indigenous people in courts. This article discusses three court complexes designed in collaboration with Indigenous communities to accommodate Indigenous connections to the environment surrounding the courthouse and to enhance access to justice. Indigenous collaborations in the design of the Indigenous-inclusive court complexes at Port Augusta (South Australia), Kalgoorlie and Kununurra (Western Australia) produced spatially distinct courthouses that eschew some historical court design principles and attempt to introduce features relevant to local Indigenous nations. This illustration essay discusses the emergence of Indigenous design principles that may inform courthouse redesign, the application of some of these principles in new courthouse designs and the need for local Indigenous oversight in the design processes. It provides a framework for further research into how Indigenous architectural collaborations in courthouse designs may promote safer and fairer environments for Indigenous court users. It also raises some potential disjuncture between court design and use of court space that may undermine the vision embedded in cultural design principles.
Thalia Anthony, 'Sentencing Indigenous Offenders' (Research Brief No 7, Indigenous Justice Clearinghouse, 2010)
Fryer-Smith, Stephanie, The Aboriginal Benchbook for Western Australian Courts (AIJA, 2nd ed, 2008)

Websites

Indigenous Law Centre
The only Indigenous specific law centre in Australia, based at UNSW.
Indigenous Law and Justice Framework
Information about Australian Government programs and policy.
Australian Indigenous Law Library
The Australian Indigenous Law Library on Austlii has special features, case law, legislation, law journals, law reform publications and treaties and international agreements.
The Native Title Infobase
Maintained by the Federal Court Library and includes selected material commencing from 1839 to the present day and covers all aspects of native title in Australian material including journal articles, book chapters, books, conference papers, reports and press clippings. It also includes material from other jurisdictions.
Jumbunna
Jumbunna is an Indigenous House of Learning that supports students, promotes Australian Indigenous culture, history and philosophy at UTS, and nurtures and develops Indigenous research and Indigenous researchers.
Indigenous Justice Clearinghouse
The aim of the IJC is to promote discussion and disseminate relevant Indigenous justice information to government policy makers and those working in the Indigenous justice field.

Books

Ally authors

Indigenous Courts, Culture and Partner Violence by Elena Marchetti
Call Number: E-book
Publication Date: Palgrave Macmillan, 2019
Specialist Courts for Sentencing Aboriginal Offenders by Paul Bennett
Call Number: KM 590 Q43 K1 BENN
Publication Date: Federation Press, 2016