Aboriginal people and the law - Legal Information Access Centre

The Law HandbookYOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES13th EDITIONREDFERN LEGAL CENTRE PUBLISHING

Published in Sydneyby Thomson Reuters (Professional) Australia LimitedABN 64 058 914 668100 Harris Street, Pyrmont NSW 2009First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978.First published as The Law Handbook in 1983Second edition 1986Third edition 1988Fourth edition 1991Fifth edition 1995Sixth edition 1997Seventh edition 1999Eighth edition 2002Ninth edition 2004Tenth edition 2007Eleventh edition 2009Twelfth edition 2012Thirteenth edition 2014Note to readers: While every effort has been made to ensure the information in this book is as up to date and asaccurate as possible, the law is complex and constantly changing and readers are advised to seek expert advicewhen faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used asa substitute for legal advice.National Library of AustraliaCataloguing-in-Publication entryThe law handbook : your practical guide to the law in NSW / Redfern Legal Centre.13th edition.Includes indexISBN: 9780455234557Law – New South Wales – Handbooks, manuals, etcLegislation – New South WalesJurisprudence – New South Wales – Handbooks, manuals, etcCivil rights – New South Wales – Handbooks, manuals, etc349.944© 2014 Thomson Reuters (Professional) Australia LimitedThis publication is copyright. Other than for the purposes of and subject to the conditions prescribed under theCopyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying,photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without priorwritten permission. Inquiries should be addressed to the publishers.This edition is up to date as of 1 October 2014.The Law Handbook is part of a family of legal resource books published in other states:Vic: The Law Handbook by Fitzroy Legal Service, ph: (03) 9419 3744SA: The Law Handbook by the Legal Services Commission of SA, ph: (08) 8111 5555Qld: The Law Handbook by Caxton Legal Centre, ph: (07) 3214 6333Tas: The Tasmanian Law Handbook by Hobart Community Legal Service, ph: (03) 6223 2500NT: The Law Handbook by Northern Territory Legal Aid Commission and Darwin Community Legal Services,ph: (08) 8982 1111Editor: Ben BrocherieProduct Developer: Karen KnowlesPublisher: Robert WilsonIndexed and proofread by: Puddingburn Publishing ServicesPrinted by: Ligare Pty Ltd, Riverwood, NSWThis book has been printed on paper certified by the Programme for the Endorsementof Forest Certification (PEFC). PEFC is committed to sustainable forest managementthrough third party forest certification of responsibly managed forests.

Aboriginal people andthe law2Robyn Ayres Arts Law Centre of AustraliaPatricia Lane Barrister, University of SydneySusan Burton Phillips BarristerShannon Williams Women’s Legal Services NSWContents[2.10] Historical legacy [2.240] Indigenous women and the[2.30] The application of British and lawAustralian law [2.280] Land law[2.70] Some current points of [2.290] Aboriginal land ownership inconflictNSW[2.140] Aboriginal people and [2.310] The Aboriginal Land Rightscriminal lawAct[2.140] Dealing with the police [2.350] Native title[2.180] Legal assistance [2.390] Resource law[2.200] Trial and sentencing [2.440] Heritage and cultural[2.230] Children, women and protectionfamily law [2.440] Protection of heritage[2.230] Protecting Indigenous [2.480] Copyright and otherchildrenprotections

40 The Law Handbook[2.10] Historical legacyTo understand the relationship betweenIndigenous people and the Australian legalsystem, it is essential to appreciate somethingof the history of that relationship.Which law?There are two legal systems for many Aboriginal andTorres Strait Islander people.The most obvious is the Australian legal system to whichall Australians are subject (with some differences betweenstates and territories). The other body of law thatapplies to Aboriginal and Torres Strait Islander people istheir own systems of customary law, beyond the lawsenacted by parliament or developed by the courts. TheHigh Court has only since the Mabo decision in 1992(Mabo v Queensland (No 2) (1992) 175 CLR 1) recognisedthat Indigenous laws survived invasion by the British andcontinue to the present time. So far this recognition hasonly been applied to the ownership and use of land andwaters, but it could conceivably extend to other areas.[2.20] The issue ofsovereigntyIndigenous people in Australia never cededsovereignty of the lands comprising theAustralian continent to the British Crown –that is, not one of the 600 or more clangroups (defined by dialect) ever gave upsovereignty over their traditional lands.Indigenous people argue that the Crown’sclaim to sovereignty is not sustainable underinternational law. However, in Coe v Commonwealth(1979) 53 ALJR 403 the HighCourt said that Australian courts were notcapable of deciding the issue of sovereignty,which meant that Indigenous Australianswould have to seek a ruling in internationallaw on the legality of the way in which theBritish government gained sovereignty overAustralia. The international courts are not,however, designed for what amounts tosecessionist action by Indigenous peoples orothers seeking to roll back colonialism. Theymay only hear matters between “nationstates”, and no Aboriginal and Torres StraitIslander group in Australia has that status.Indigenous people are left to seek remediesfor their dispossession under the domesticlaws of Australia and through politicalactions.Recourse to the United NationsWhere there has been a breach of an international treatyor convention, Indigenous people may be able to bringan individual or group application before the UnitedNations Human Rights Committee; for example mostrecently in 2007 in an application brought to theCommittee in relation to the Commonwealth Government'sEmergency Intervention in the Northern Territoryand earlier in 1998, regarding the effect of the amendmentto the Native Title Act 1993 (Cth) (The Ten PointPlan).Under the International Covenant on Civil and PoliticalRights, which Australia has signed, the Committee canhear complaints from Australian citizens where:• the violation occurred on or after 25 December 1991,and• the complainant has exhausted all available domesticremedies.

42 The Law HandbookPermission requirementsAboriginal people on NSW reserves couldnot marry, work or even leave the reservewithout the permission of the Board or itsdelegate.Punishment for traditional practicesThere was frequent punishment for practisingtraditional ceremonies or speaking in“lingo” or tribal language.Requirement for corroboration of evidenceIn NSW, when an Aboriginal person gaveevidence in court, the facts had to becorroborated by the independent evidenceof a white person. When a white person wascharged with a crime against an Aboriginalperson, this corroboration was rarelyforthcoming.Aboriginal people could not make anaffirmation in accordance with their ownbelief system until the Evidence Act 1876(NSW).The dog licenceAn Aboriginal person seeking to escapecontrol by the Aborigines Protection Board,(and from 1940, the Aborigines WelfareBoard) had to have an exemption certificate.Aboriginal people still call these certificates“dog licences”. A person seeking exemptionhad to demonstrate to the Board an abilityto assimilate and manage their own affairs.In effect, Aboriginal people had to provethat they could act like whites.Removal of Aboriginal childrenThe Board could remove Aboriginal childrenfrom their communities if they were deemedto be “neglected” or “in moral danger”.Bringing Them HomeMany thousands of Aboriginal children were taken fromtheir parents during the operation of the AboriginesProtection Board and the Aborigines Welfare Board. Theywere the subject of the Human Rights and Equal OpportunityCommission Inquiry into the Separation of Aboriginaland Torres Strait Islander Children from theirFamilies, and its 1997 report Bringing Them Home.[2.60] Indigenous people andthe Australian ConstitutionDiscrimination against Indigenous peoplealso existed at the federal level. Section 25 ofthe Constitution contemplates electoral disqualificationbased on race.Until a referendum in 1967, s 51(xxvi) ofthe Constitution provided that the Commonwealthcould make laws for “the peopleof any race except the Aboriginal race”(effectively leaving them in the hands of theStates), and they were not counted in thecensus (s 127).The 1967 referendum recognised that theinterests and welfare of Australia’s Indigenouspeople was a national responsibility.Section 51(xxvi) of the Constitution nowprovides that the Commonwealth may makelaws for “people of any race”.At first, the Commonwealth governmentenacted only a handful of laws under thisprovision, but in more recent years legislationhas been enacted, some of itcontroversial, to attempt to improve socialand economic conditions for Aboriginalpeople, and to move towards recognisingtheir place in the Australian polity. Some ofthe important federal laws which rely on the“race” power are the:• Aboriginal Land Rights (Northern Territory)Act 1976• Aboriginal and Torres Strait Islander HeritageProtection Act 1984• Aboriginal and Torres Strait Islander CommissionAct 1989• Native Title Act 1993• Aboriginal and Torres Strait Islander Act2005• Corporations (Aboriginal and Torres StraitIslander) Act 2006• Northern Territory National Emergency ResponseAct 2007• Aboriginal and Torres Strait Islander PeoplesRecognition Act 2013The Aboriginal and Torres Strait Islander HeritageProtection Act 1984 was enacted whenthe federal government found it was unableto deliver on its promise of national landrights legislation.

2 Aboriginal people and the law 43Since 1996, there have been attempts tosubstantially weaken the first four of theseActs. Notably, the federal government abolishedthe Aboriginal and Torres Strait IslanderCommission in 2005 and repealed theAboriginal and Torres Strait Islander CommissionAct 1989. The amendments to the NativeTitle Act have drawn criticism both inAustralia and internationally, as has theNorthern Territory National Emergency ResponseAct 2007, under which the Commonwealthcompulsorily acquired leases of Aboriginalland in the Northern Territory tosupport tough regulation of Aboriginalcommunities, including alcohol bans andwelfare spending restrictions.The Hindmarsh Bridge caseIn the Hindmarsh Bridge case (Kartinyeri v Commonwealth(1998) 72 ALJR 722), the High Court consideredwhether s 51(xxvi) of the Constitution could be used tothe detriment of Aboriginal people. The court wasdivided on the question, but the majority held that theHindmarsh Island Bridge Act 1997 (Cth), which placeditself outside the provisions of the Aboriginal and TorresStrait Islander Heritage Protection Act 1984 (Cth), wasvalid on the general principle that the power to make anAct must include the power to repeal or amend it.Justice Kirby argued that a greater principle shouldapply, and Justice Gaudron noted that “it is difficult toconceive of a present circumstance pertaining to AboriginalAustralians which could support a law operatingto their disadvantage”. Nevertheless, the constitutionalityof the 1997 Act was upheld without recourse tointerpretation of s 51(xxvi).Wurridjal v The Commonwealth [2009] HCA 2;(2009) 237 CLR 309On 25 October 2007 Mr Wurridjal commenced High Courtaction alleging that the Northern Territory NationalEmergency Response Act 2007 and other Acts thatsupported it were invalid because they amounted to anacquisition of property without just terms compensation,contrary to s 51(xxxi) of the Constitution. He claimedthat although the Commonwealth had given compensationfor the acquisition of leases over Aboriginal land,the traditional owners had also been deprived of theirrights to access their traditional country because theleases gave the Commonwealth power to deny permissionto enter the affected communities. The Commonwealthargued that the claim could not succeed, andshould be dismissed without a trial.The majority found that the legislation had eitherprovided just terms, or did not affect the rights oftraditional owners under the Aboriginal Land Rights(Northern Territory) Act 1976 (Cth) to visit communitiesand care for sites, and that the claim should bedismissed. The majority did, however overrule a 1969case, Teori Tau v The Commonwealth [1969] 119 CLR564, and decided that Commonwealth laws passed inrelation to the Territories (under s 122 of the Constitution)were invalid if they did not provide just termscompensation for acquisition of property. Justice Kirbydissented on the basis that the interference with thelives of the Aboriginal people in the affected communitieswas so great that the issues should go to a trial.In 2011 an expert panel was appointed tolead a national public consultation andengagement program to build consensus onthe recognition of Indigenous Australians inthe Constitution. The panel presented aunanimous report recommending changesto the Constitution which recognise thecontinuing cultures, languages and heritageof Aboriginal and Torres Strait Islanderpeoples; remove racist elements; and prohibitdiscrimination on the grounds of race,colour or ethnic or national origin.On the basis of that report, the Commonwealthenacted the Aboriginal and TorresStrait Islander Peoples Recognition Act 2013(Cth). The Preamble states that “The Parliamentis committed to placing before theAustralian people at a referendum a proposalfor constitutional recognition of Aboriginaland Torres Strait Islander peoples.”In s 3 the Act provides, that the Parliament,on behalf of the people of Australia, recognisesthe Aboriginal and Torres Strait Islanderpeoples’ first occupation of “thecontinent and islands now known as Australia”;acknowledges the relationship of thosepeoples with their traditional lands andwaters, and their continuing culture, languageand heritage.The Act required a review of the readinessof the Australian people to give formalrecognition in the Constitution to Aboriginaland Torres Strait Islander people, the meansby which that recognition may be achieved,and the level of support for formalrecognition, and required a report to theMinister at least six months before 27 March2015, when the Act ceases to have effect. The

44 The Law HandbookJoint Select Committee on Aboriginal and make laws about Aboriginal and TorresTorres Strait Islander Recognition has pro- Strait Islander people; but prevent theduced an interim report (July 2014) which Commonwealth, in making any such laws,concludes that to be successful at a from discriminating against Aboriginal orreferendum, any proposal must recognise Torres Strait Islander people. The final re-Aboriginal and Torres Strait islander people; port has not yet been produced.preserve the ability of the Commonwealth toSome current points of conflict[2.70] Pastoralism, mining,conservationAboriginal law and custom concerning theinteraction between people and land, andcommunal and individual responsibilitiestowards the care and nurture of land, are atodds with the European Australian practicesof pastoralism and mining and the conceptof land as a resource to be exploited.Aboriginal principles of caring for countryare not necessarily consistent with conservationlaws. Often conservation principles arebased on the idea that an ecosystem oughtto be preserved, untouched by humanintervention, but Aboriginal people haveengaged in traditional land management formillennia. Aboriginal people have their ownaspirations for development, to improvetheir economic circumstances while seekingto protect their special relationship with theland. The debate in Queensland and at anational level between Aboriginal people,government and conservationists about WildRivers legislation is an example of this.[2.80] Traditional marriageIn 2003, charges were brought against a50-year-old Northern Territory man for havingunlawful sexual relations with a girlunder 16 (Criminal Code (NT), s 331A). Theaccused, a traditional Aboriginal man,claimed that he and the girl were marriedaccording to traditional law – a defence thatwas provided for in the Criminal Code. Hewas convicted, and although the crimecarries a maximum penalty of seven years’imprisonment, was sentenced to one day injail.Following this case the Northern Territorygovernment amended the Criminal Code toremove the traditional law defence, arguingthat it had a responsibility to protect youngwomen from sexual exploitation. The repealof the traditional marriage defence meansthat Aboriginal men living according toAboriginal law and custom may be liable toprosecution. This must be weighed againstthe protection now afforded young womenwho may otherwise be subject to sexualexploitation.The “Child Bride” caseIn 2005 another Aboriginal man was convicted of having Director of Public Prosecutions appealed the sentence,had sexual intercourse with a girl under 16. Although the and the Full Bench of the Northern Territory Court ofman could not raise the fact that the girl was “prom- Criminal Appeal found that it was manifestly inadequate.ised” to him under Aboriginal law as a defence, he wasThe court increased the sentence to a total of 3 years11 months with an 18 month non-parole period (Queen vable to raise the matter before the judge in consider-GJ [2005] NTCCA 20). Subsequently, the federal governationof the appropriate sentence.ment passed a law amending the Crimes Act 1914 (Cth)The judge, taking the customary law issues into account, to remove the capacity of judges dealing with Commonsentencedthe man to a total of 24 months' imprison- wealth crimes under that legislation to take into accountment with 23 months suspended. The Northern Territory customary law matters when determining sentence.

2 Aboriginal people and the law 45[2.90] Customary law andcriminal lawIn Walker v New South Wales (1994) 182 CLR45, the High Court considered whethercustomary law has application in criminallaw where there is no legislative basis.Chief Justice Mason concluded that thecriminal law was intended to apply to thewhole community and therefore any customarylaw would necessarily be inconsistentwith the common law, and consequentlyextinguished.Defending traditional fishing rightsBen Ali Nona, a traditional owner of theland and waters of and around MurrayIsland in the Torres Straits, was acquitted inthe Queensland District Court of a charge ofarmed robbery after he took the catch from acommercial fishing boat while armed. Nonasuccessfully argued that he had an honestclaim of right – that is, he had an honestlyheld belief as to his or his people’s legalentitlement to the fish (see also R v Fuge[2001] NSWCCA 208). In Yanner v Eaton(1999) 201 CLR 351 traditional law was adefence to the State’s prosecution of MurrandooYanner for hunting juvenilecrocodiles. Two recent High Court cases ontraditional fishing rights, Akiba v Commonwealth[2013] HCA 33, (2013) 250 CLR 209and Karpany v Dietman [2013] HCA 47confirm that Aboriginal and Torres StraitIslander traditional fishing rights are recognisedand protected by the Native Title Act,and although State and Commonwealthfishing laws might regulate those rights,s 211 of the Native Title Act protects theirexercise. The decisions also establish that aright to take marine resources under traditionallaw is not necessarily limited totaking for a particular purpose, such asdomestic use, and that where traditional lawsupports fishing for non-domestic purposes,traditional owners may exercise rights forcommercial and domestic purposes.[2.100] Finding a way ofreconciliationSuch issues are difficult. In the past, whereconflict arose between Aboriginal law andcustom and Australian law, Australian lawprevailed. This is still the case, but whensuch issues are raised in the press or thecourts, there is now a sense that manyAustralians have an understanding thatthere must be a place for Aboriginal law andcustom within the Australian legal system.In NSW, even with a developingawareness, Aboriginal law and custom remainsat the fringe.[2.110] The Northern TerritoryInterventionOn 15 June 2007 a report entitled LittleChildren are Sacred was released by theNorthern Territory government. It identifiedthe extent of child sexual abuse claims inNorthern Territory Aboriginal communitiesand made 101 recommendations to theNorthern Territory government regardingthe needs of those communities.In response to the report, the federalgovernment passed the Northern TerritoryNational Emergency Response Act 2007 (Cth)(NTER). In order to pass the legislation itwas necessary to suspend the operation ofthe Racial Discrimination Act 1975 (Cth) asthe legislation was clearly discriminatory.The NTER provided for the acquisition ofAboriginal land by compulsory lease, incomequarantining (issuing food vouchersrather than welfare payments, removingaccess to welfare payments) and variousother measures. A review of the legislationwas undertaken by a task force appointedby the federal government, following whichthe Rudd government determined to continuewith the emergency measures.In his February 2010 report “ObservationsOn The Northern Territory Emergency ResponseIn Australia”, United Nations SpecialRapporteur on the situation of human rightsand fundamental freedoms of Indigenouspeople, James Anaya found that, “as cur­

46 The Law Handbookrently configured and carried out, provisionsof the NTER are incompatible withAustralia’s human rights obligations”. In2012 the Bill to extend the NTER to operatefor a further 10 years, called the “StrongerFutures” legislation, was passed in theHouse of Representatives. Its approval, witha few changes, has been recommended tothe Senate by the Senate Community AffairsLegislation Committee. The terms of theextension of the NTER have drawn furthercriticism from many quarters including theAustralian Human Rights Commission anda Report from Jumbunna House of Learningat the University of Technology Sydney,particularly in relation to arrangements imposingcompulsory income management andpunishments for alcohol consumption.The decision in Wurridjal, (see Indigenouspeople and the Australian Constitution at[2.60]) while holding that the legislation wasvalid, did highlight concern (expressed byKirby J in dissent) about the very intrusiveand non-consultative interference with thelives of Aboriginal people living in theaffected Northern Territory communities.[2.120] Australia apologisesOn 13 February 2008 the Prime Minister, theHonourable Kevin Rudd MHR, commencedthe first sitting day of the new parliament bymaking an apology to the Indigenous peopleof Australia who were removed from theirfamilies as children, and to their families, onbehalf of the Australian government.The “Apology” is seen as a watershedmoment in Australian history. The recognitionby the Australian government of thefundamental error and inhumanity in forciblyremoving children from their familiesdeeply moved many Indigenous and non-Indigenous Australians.[2.130] UN Declaration on theRights of Indigenous PeoplesOn 3 April 2009 Australia changed itsposition and endorsed the United NationsDeclaration on the Rights of IndigenousPeoples. The Howard government had previouslyrejected the declaration adopted bythe United Nations General Assembly inSeptember 2007, along with Canada, NewZealand and the United States. The IndigenousAffairs Minister, Ms Jenny Macklin,said the government’s change of heart was“in the spirit of rethinking the relationshipbetween Indigenous and non-IndigenousAustralians and building trust”.Aboriginal people andcriminal law[2.140] Dealing with the policeNSW police powers to arrest, detain, searchand issue directions are generally the samefor Indigenous people as they are for non-Indigenous people (Crimes Act 1900 (NSW),Pts 10, 10A and 10B). For an explanation ofthe law in this area, and many of the termsand procedures referred to in this section,see chapter 4, Arrest, interrogation and bail.

2 Aboriginal people and the law 47Rates of arrest and imprisonmentAlthough the Royal Commission into Aboriginal Deaths inCustody recommended that police seek to avoid arrestingIndigenous people wherever possible (Recommendation87), the arrest rate for Indigenous people remainsdisproportionately high.Similarly, the rate of imprisonment remains disproportionatelyhigh, even though the key recommendations ofthe royal commission were directed at reducing theover-representation of Indigenous people in jails, andcertain safeguards have been put in place for Indigenouspeople (see Circle sentencing at [2.220]).[2.150] Limitations on policepowersThere are specific limitations on police powersto arrest, detain, search or issue directionsin relation to both Indigenous andnon-Indigenous people:• An Aboriginal person who has beenarrested can be detained for questioningfor up to two hours. This may be extendedto eight hours, with a magistrate’sapproval, if the offence being investigatedis punishable by imprisonment for morethan 12 months.• The investigating police must notify anAboriginal legal aid organisation whenan Aboriginal person is arrested. Theperson is entitled to have a legal practitionerpresent to give advice duringquestioning.• If the person is arrested more than oncein 48 hours, the investigation period foreach arrest is reduced by the period of theprevious investigations.• At the end of the investigation period theperson under arrest must be released,either unconditionally or on bail, orbrought before a magistrate as soon aspracticable.• A person who has not been arrested maynot be detained against their will.• The person being investigated must becautioned, in a language in which theycan communicate with “reasonablefluency”, that they do not have to sayanything during questioning. In somecircumstances an interpreter is needed.The person must be told of their right tocommunicate with a friend, relative orlawyer, and be allowed to do so. Ifpracticable, the caution should berecorded.• An Aboriginal person under arrest isentitled to have a friend or supportperson present during questioning.Investigating police do not have to notify anAboriginal legal aid organisation or permit afriend to be present if the detainee’s educationand understanding means they are notat a disadvantage.Police questioning before arrestPrior to arrest, police officers have the powerto demand the name and address of anyperson:• in relation to certain motor traffic anddrug offences• where the police hold a reasonable suspicionthat the person:– was a witness to a crime– has stolen goods in their car– has a dangerous implement, or– possesses or is consuming alcohol in apublic place.There are no special provisions in the NSWCrimes Act 1914 or Evidence Act 1995 requiringAboriginal people under arrest to betreated any differently when being interrogatedby police.[2.160] Forensic proceduresFollowing the introduction of the Crimes(Forensic Procedures) Act 2000 (NSW), thereare clear rules as to how police may obtainbodily samples for forensic purposes.A distinction is made between intimateand non-intimate procedures.Non-intimate proceduresA non-intimate sample might consist of:• fingerprints• hair• nail scrapings• body moulds• photographs (s 3(1)).A non-intimate procedure can be carried outunder an order from a senior police officer(Crimes (Forensic Procedures) Act 2000, s 17).

48 The Law HandbookIntimate proceduresAn “intimate forensic procedure” includes:• examination of the genitals• taking a sample of blood, saliva or pubichair• taking dental impressions (s 3(1)).To carry out such procedures the policeofficer must have either:• the consent of the person from whomthey wish to obtain the sample, or• a court order (ss 7, 22).AdmissibilityA sample that has not been obtained inaccordance with the Act is not admissible asevidence in court (s 82).Intimate procedures and AboriginalpeopleIf the police wish to carry out an intimateprocedure on an Aboriginal person, aninterview friend (a support person chosen bythe person) must be present when theperson is asked for their consent, unlessthey have expressly and voluntarily waivedtheir right to have an interview friendpresent.The police must also inform the personthat the relevant Aboriginal legal servicewill be notified of the proposal to ask forconsent (s 10). An interview friend or legalrepresentative must be present when theprocedure is being carried out on an Aboriginalperson (s 55).Reasons for the provisionsThe special provisions in relation to Aboriginalpeople arise in part from an inquiry bythe NSW Legislative Council Standing Committeeon Law and Justice into the Crimes(Forensic Procedures) Act 2000.The Aboriginal and Torres Strait IslanderCommission and the NSW Aboriginal LandCouncil made submissions to this inquiry,pointing out that bodily samples are used byAboriginal people for spiritual purposes andas a result Aboriginal people may be particularlyreluctant to give such samples.[2.170] BailSection 17(3)(j) of the Bail Act 2013 (NSW)requires the bail authority to take intoaccount any special vulnerability or needsthe accused person has being an Aboriginalor Torres Strait Islander when consideringbail.What Indigenous people should know about the criminal lawThere are no criminal offences that apply specifically toIndigenous people. Some laws that relate to criminalprocedure – in particular, sentencing procedure – dohave special requirements for Indigenous people.In general terms, Indigenous people or their legal representativesshould be aware of a number of aspects ofthe criminal justice system:• All people have a right to silence. No-one has to tellpolice or other authorities their name and addressexcept under specific circumstances, including wherethe police believe on reasonable grounds that theperson has committed or witnessed a crime (seePolice questioning before arrest at [2.150]).• All people have the right to deny police entry to theirhouse unless:– the police have a warrant, or– the police tell the occupant that they wish toenter the house because they suspect a crime isbeing committed inside the premises, or a personwho has committed a crime is inside the premises.• All people have the right to have a legal representativepresent at any interview, whether they havebeen arrested or not.• Aboriginal people are entitled to have their Aboriginalitytaken into account by the police custodymanager when considering whether police bail shouldbe granted or not.• Aboriginal people are entitled to have their Aboriginalitytaken into account by the court when consideringbail.• Aboriginal people must have an interview friend (asupport person chosen by the person) present:– before they can be asked to consent to a forensicprocedure (that is, the taking of body sampleslike hair, saliva or blood), and– during the carrying out of a forensic procedure(see Forensic procedures at [2.160]).• In court, Indigenous people are tried in the samefashion as anyone else. Indigenous people are notentitled to be tried by an Indigenous judge or jury.• In certain areas of NSW, an Aboriginal person whohas entered a plea of guilty is entitled to request thatthey be sentenced by the magistrate in consultationwith the Aboriginal elders of the area (see Circlesentencing at [2.220]).

2 Aboriginal people and the law 49• When sentencing an Aboriginal person, the Court cantake into account the hardship and disadvantagecaused by their background.• In prison, Aboriginal people are not entitled to betreated differently from the other inmates in respectof classification, segregation, leave of absence orparole. There is usually at least one Aboriginal personon the Parole Board, although there is no specificrequirement for this.Women, children and young peopleThere are no provisions of the criminal law that relatespecifically to Aboriginal women or to people under theage of 18. For information regarding children and thecriminal law see chapter 8, Children and young people.Legal assistance[2.180] Aboriginal legalservicesAboriginal legal services were established inthe 1970s largely in response to the overrepresentationof Aboriginal men in thecriminal justice system, in particular due tomisuse of the Summary Offences Act 1988(NSW) (which covers such things as vagrancyand swearing in a public place).In 2006 the six Aboriginal legal services inNSW and ACT were amalgamated to form asingle service, called the Aboriginal LegalService (NSW/ACT) Limited (ALS (NSW/ACT)), which continues to be an Aboriginalcommunity controlled organisation. Thereare 23 offices in NSW and ACT in metropolitanand regional areas.ALS (NSW/ACT) provides legal adviceand court representation for Aboriginal andTorres Strait Islander men, women andchildren in criminal law and children’s careand protection matters.Women's legal servicesAn Aboriginal women’s legal service, WirringaBaiya, was established in 1996 inrecognition of women’s special legal needs,particularly in relation to domestic violence,sexual assault, care and protection, andcustody matters. The Indigenous Women’sLegal Program at Women’s Legal ServicesNSW was established in 1996 to respond toAboriginal women’s civil legal needs acrossNSW (see Indigenous women and the law at[2.240]).See Contact points at [2.580] for a full list of AboriginalLegal Services in NSW.[2.190] Office of theOmbudsmanThe NSW Ombudsman has a designatedAboriginal liaison officer to deal with complaintsfrom Aboriginal people.[2.200] Trial and sentencingAll persons are entitled to be tried inindictable criminal matters by a jury of theirpeers (Criminal Procedure Act 1986 (NSW),s 131). The reference to “peers” does not,however, entitle a person to be tried only bypeople of their own race or religion. Thejury rolls are established by the selection ofnames at random from the electoral rolls(Jury Act 1977 (NSW), s 12). Aboriginalpeople are not entitled to trial by an Aboriginaljudge or magistrate.For details about trial procedure, see chapter 14, Court.

50 The Law Handbook[2.210] Effect of customarylawIndigenous people cannot plead that theyacted in accordance with customary law as adefence to any criminal charge. Althoughthe Australian Law Reform Commission’s1986 report Recognition of Aboriginal CustomaryLaw recommended that a partial customarylaw defence be created, this has notoccurred in any Australian state or territory.In 2000 a NSW Law Reform Committee,on which Justice Michael Adams sat aschair-person and Judge Bob Bellear sat as acommittee member, produced a report (Report96 (2000) Sentencing: Aboriginal Offenders)which recommended that the Crimes(Sentencing Procedure) Act 1999 (NSW) beamended to provide for customary lawmatters to be taken into account in thesentencing of Aboriginal offenders. Thoserecommendations have not beenimplemented. In December 2006 the federalgovernment passed amendments to theCommonwealth Crimes Act 1914 forbiddingjudges dealing with matters under that Actfrom taking into account customary law andcultural practices when considering bail orsentencing of an offender. The NT NationalEmergency Response Act 2007 (Cth) (NTER)also included measures preventing courtsfrom taking customary law into account inbail or sentencing decisions. The NorthernTerritory Chief Justice, Trevor Riley, expressedconcern over s 91 of the NTER,saying it meant Aboriginal people were notgiven the same rights as other members ofsociety.[2.220] SentencingThe Crimes (Sentencing Procedure) Act setsout the matters to be taken into account bythe court in determining the appropriatesentence in respect of a given offence. Aperson’s Aboriginality is neither an aggravatingnor a mitigating factor.The court is, however, required to haveregard to “any other objective or subjectivefactor that affects the relative seriousness ofthe offence” (s 21A). Among these subjectivefactors are the specific and unique historicaland cultural issues that affect Aboriginalpeople’s position in Australian society (see Rv Simpson, Supreme Court of NSW,unreported, 15 December 1981; R v Gordon,Supreme Court of NSW, unreported, 5 August1983; R v Fernando (1992) 55 ALB 19; R vJackie (1992) 63 ALB 19). Such factors havebeen held to be of less or no relevance in thecase of Aboriginal people who have onlyexperienced urban life.Circle sentencingThe NSW Law Reform Commission’s Report96 (2000) Sentencing: Aboriginal Offendersrecommended that pilot schemes for circlesentencing and adult conferencing should beinstituted in consultation and collaborationwith Aboriginal communities. Followingthis, the Aboriginal Justice AdvisoryCommittee, in collaboration with the Aboriginalcommunity in Nowra, commenceda pilot circle sentencing scheme.Currently the program operates at localcourts in Nowra, Dubbo, Walgett,Brewarrina, Bourke, Lismore, Armidale andKempsey, Nambucca, and Mount Druitt.The scheme currently only applies to adults.How circle sentencing worksThe scheme allows a magistrate to sit withthe Aboriginal elders of the area and discusssentencing options in relation to Aboriginaloffenders. Sentences are passed under thescheme only when the offender requests tobe so sentenced. The benefits of the schemeinclude:• greater understanding and participationin the administration of justice by theAboriginal community• a clearer recognition by the offender thatcriminal offending is unacceptable to thewhole community, and• a clearer understanding by the offender ofthe effect of crime on victims (especiallywhen the victim attends).Circle sentencing is not of itself the applicationof customary law, but provides anavenue for issues of customary law to betaken into account when determiningsentence.

2 Aboriginal people and the law 51For further information see Circle Sentencing in NSW: AReview and Evaluation, 2003, NSW Aboriginal JusticeAdvisory Council.Children, women and familylaw[2.230] Protecting Indigenous childrenIn 1997 the Australian Human Rights Commissionreported on the Inquiry into theSeparation of Aboriginal and Torres StraitIslander Children from their Families. Thereport, Bringing Them Home, proposed aframework of national standards to guidegovernments and other agencies in theprotection of Indigenous children.Major standards for the care and protectionof Aboriginal children in NSW, andtheir relationship to the standards proposedin the report, are as follows:• There is an initial presumption that it is inthe child’s best interest to remain withinthe family, community and culture. Indeciding whether it is in the child’s bestinterests to be taken into care and protectionthe court must consider:– the views of the child and the family– the need to maintain contact withcommunities and cultural heritage– the advice of accredited Aboriginalorganisations (standard 1)(see Children and Young Persons (Care andProtection) Act 1998 (NSW)).• In judicial or administrative decisionsrelating to care and protection the child’sbest interests should remain paramount(standard 2).• Detention of an Indigenous child is a lastresort. When deciding whether the dangerto the community as a whole outweighsthe desirability of keeping a childwith family or community, the court mustconsider imprisonment as a last resort(Children (Criminal Proceedings) Act 1987(NSW), s 33(2)) (standard 3).• When an Indigenous child or youngperson is involved in care and protectionmatters, an Aboriginal organisationshould be consulted and involved inevery stage of the process (See Childrenand Young Persons (Care and Protection) Act1998) (standard 4).• Indigenous children should have representationof their choice (or, where a childcannot make a choice, representation byan Aboriginal organisation) (standard 5).• When a child or young person is to beremoved from their family the followingoptions should be considered, in thisorder (standard 6):– placement with a member of the familyor kinship group, as recognised bythe community to which the childbelongs– placement with a member of the Aboriginalcommunity to which the childbelongs– placement with another Aboriginalfamily near the child’s usual home– placement by Family and CommunityServices, after consultation with thechild’s extended family and appropriateAboriginal welfare organisations.

52 The Law Handbook• Adoption is a last resort (standard 7). In • Certain rules should apply when Aborigi-NSW, families where at least one partner nal children come into contact with theis Aboriginal are preferred where an juvenile justice system (standard 8).Aboriginal child is to be adopted. Areport by the NSW Law Reform Commis- For details of the recommended rules, see Bringing Themsion on adoption legislation recognises Home, available from the Australian Human Rightsthat adoption is at variance with Aborigi-Commission.nal customary law and that Aboriginalchildren should not be adopted unlessthere is clearly no other choice.[2.240] Indigenous women and the lawIt is often assumed that Indigenous women’slegal issues are the same as those ofIndigenous men. This is not the case, particularlyin the areas of domestic violenceand family law.Previous Indigenous service providershave resourced the perpetrator, leaving thevictim without adequate representation andsupport. Major Indigenous service providerssuch as Aboriginal Legal Services are nowaddressing policies and practices which hadfailed to take account of Indigenous women’slegal needs. Governments and funders,too, are just beginning to recognise the needfor gender specific services for Indigenouswomen. However, in light of the currentgovernment funding cuts to such servicestherefore reducing specialist services, it isessential there is adequate, ongoing andsustainable funding for culturally safeservices. Indigenous women are often thebackbone of their families and communities,and they may experience extreme levels ofviolence. Their legal needs are different inmany respects.[2.250] Indigenous womenand violenceUntil recently, domestic violence was asubject on which Indigenous women wereeffectively silenced, both in their own communityand outside it. Domestic violence israrely reported in Indigenous communities,although the reporting rate is increasing.Indigenous women may often bear theheavy responsibility of protecting their partnersor family members from police andlegal structures, that may have historicallyoperated unresponsively, inaccessibly andprejudicially within their communities.Barriers faced by Indigenous womenWhile Indigenous women in violent relationshipsshare some of the needs of otherwomen in this situation (whether they livein urban, rural or isolated areas), they faceadditional barriers in the form of culturallyinappropriate services and limited resourcesand funding dedicated to their problems.While access to information and services isvital, most services available to victims ofdomestic violence are non-Indigenousservices. This creates physical, cultural and,in some cases, language barriers for Indigenouswomen.Why violence is not reportedIndigenous women may be reluctant to goto police or court services because of previousunsympathetic or destructive experienceswith these institutions. There is anadditional fear, as the report of the RoyalCommission into Aboriginal Deaths in Custodypoints out, to the effect that “if yourman flogs you and you call the police andthey take him away, he might die in jail orthe police might kill him. Do you want thaton your conscience?”

2 Aboriginal people and the law 53This fear is a major contributing factor innot reporting domestic violence. It continuesto place the responsibility for the violenceon women.Communicating with policeThe lack of female Aboriginal CommunityLiaison Officers in key NSW police stationshas been consistently identified by Indigenouswomen as a factor in the underreportingof domestic violence and sexualassault. This is strictly “women’s business”,and for Indigenous women to talk to menabout such intimate and traumatic issues isboth embarrassing and shameful. Whilstthere are some (mostly non-Indigenous)female Domestic Violence liaison officersand police officers, the cultural barrier maystill remain.[2.260] Accessing the familylaw systemThe experience of the legal system for manyIndigenous women has been a negative,confusing and disempowering one. Manywomen choose not to engage with thefamily law system as they are concernedthat the Department of Family and CommunityServices will become involved and taketheir children away. However, using thefamily law system, including family disputeresolution and the courts, can be a usefulway to take positive steps to make safearrangements for children without Familyand Community Services involvement. Culturallyappropriate services are crucial toenable this.The ability of Indigenous women to accessthe legal system without professional andongoing holistic support is limited. SomeIndigenous women have had violence inflictedon them by more than oneperpetrator, as children and adults. Thesewomen are particularly vulnerable andmany have moderate to severe posttraumaticstress and associated psychologicalconditions of varying degrees (egdepression, severe anxiety, personalitydisorders). Indigenous women may also bedisadvantaged by generally having low literacylevels and having significant social,economic, geographic and culturaldisadvantage. Many women have otherfamily members experiencing similardisadvantage, as well as also being victimsof sexual assault and/or family violence.Family dispute resolution (FDR) servicesare located in large regional centres, howeverthey are not in most small towns noranywhere close to many Aboriginalcommunities. The lack of private and publictransport and costs of travel and accommodationmean attending these services isdifficult. FDR services are very much mainstreamservices which are focused on thenuclear family model and non-Indigenousfamily raising practices.The family law courts have developed aReconciliation Action Plan as part of astrategy to make the courts more accessible.Access to informationGiven the levels of domestic violence andsexual assault Indigenous womenexperience, information about the VictimsSupport Scheme is also essential. Relativelyfew Indigenous women are aware of thisscheme and their right to apply for counsellingand financial assistance as victims ofviolent crime. Victims Services has an AboriginalContact Line 1800 019 123.See also chapter 42, Victims Support and chapter 21,Domestic violence.[2.270] Legal services forIndigenous womenWirringa Baiya Aboriginal Women’s LegalCentre was established in 1996 and is inMarrickville in Sydney. Wirringa Baiyameans black women speak. It providestelephone advice about domestic violence,sexual assault, care and protection andcustody matters. It can provide legal representationor refer women to otherrepresentation.Women’s Legal Services, a mainstreamservice provider, established an IndigenousWomen’s Legal Program in 1997. It providesa state-wide service including a “1800”advice line for family and civil matters,

2 Aboriginal people and the law 55[2.300] Aboriginal land rightsand MaboLand can be dealt with or affected in anumber of ways, but the most common wayof acquiring private rights to land is throughthe Torrens title system, the most importantfeature of which is the concept of indefeasibletitle confirmed by entry on the Register ofTitles.Within this system of title, before the Mabodecision, the NSW government made provisionfor Aboriginal people to make landclaims over vacant crown land by enactingthe Aboriginal Land Rights Act.In 1994, following the Mabo decision in1992, the government legislated to allow fornative title to be recognised in NSW consistentlywith the provisions of the Native TitleAct.National parksIn 1996 the NSW government amended the NationalParks And Wildlife Act 1974 to make provision fornational parks to be transferred to the “Aboriginalowners” and leased back to the government as nationalparks.[2.310] The Aboriginal Land Rights ActThe Aboriginal Land Rights Act provides for:• a land claim mechanism• a land council structure, and• an income stream.[2.320] Claims under the ActThe land claim mechanism does not, strictlyspeaking, grant “land rights”, but provides ameans by which Land Councils apply to thegovernment for a transfer of vacant crownlands which are not lawfully used oroccupied, or are not needed, or likely to beneeded, for residential purposes, or for anessential public purpose. In substance, thetitle is transferred as of right, as a form ofcompensation for dispossession, as the Ministerhas no discretion to refuse to transferthe land if it falls within the definition of“claimable Crown land” in the Act. Applicationsto the Minister to grant land must bemade by either the NSW Aboriginal LandCouncil (NSWALC) or a local AboriginalLand Council for the area where the land isclaimed. Land councils are constituted accordingto the Act and proclaimed by thegovernor.Local Aboriginal Land Council membershipis based not on traditional associationwith the land but on the fact that a personlives within the geographical boundaries ofthe land council area, or has a “sufficient”association (which need not be traditional incharacter) which is accepted by other membersof the land council.What the Act recognisesThere have been significant developments in the lawsince this Act was passed, but in 1983 it was consideredground-breaking legislation. Many features of the Acthave stood the test of time. For instance, the preamblerecognises that:• land was traditionally owned and occupied by Aboriginalpeople• land is of spiritual, social, cultural and economicsignificance to them• it is fitting to acknowledge this importance• as a result of past government decisions, Aboriginalland has been progressively reduced withoutcompensation.[2.330] Aboriginal landcouncilsThe Aboriginal Land Rights Act originallycreated a three-tiered system of land councils:

56 The Law Handbook• the NSW Aboriginal Land Council (coveringthe state)• 13 regional land councils• 120 local Aboriginal land councils.However, amendments to the Act, passed on4 December 2006, abolished regional landcouncils.[2.340] Obtaining land underthe ActAboriginal people can obtain land or associatedrights under the Act through:• land claims (s 36)• purchase of lands (ss 12(b), 23(c), 38)• acquisition by the Minister for AboriginalAffairs (s 39)• access to land for hunting and fishing(ss 47, 48)• rights to minerals (s 45) and royalties(s 46)• community benefits schemes and socialhousing schemes provided by local Aboriginalland councils (ss 52A and 52B).Land claimsLand claims under the Act can be made onlyby local land councils, or by the NSWAboriginal Land Council on behalf of one ormore local land councils. The claims arelimited to vacant crown land not lawfullyused or occupied, or required or likely to berequired for an essential public purpose orfor residential purposes.ProcedureClaims are normally prepared by the localland council, often with legal advice fromsolicitors or the NSW Aboriginal LandCouncil. They are lodged with the registrarappointed under the Act, who certifies thatthe land claimed is within the boundary ofthe local land council and then sends theclaim to the Minister for Crown Lands (theMinister for Lands) for determination.The minister's responsibilityThe minister gives notice of the claim torelevant government agencies, including localgovernment. These agencies may object,but only on the ground that the land isrequired or likely to be required for anessential public purpose or for residentialpurposes.If the minister is satisfied that the land isvacant crown land and not required for anessential public purpose or residentialpurposes, the claim must be granted.Appeal against refusalIf the minister refuses the claim, the localAboriginal land council may take the matteron appeal to the Land and EnvironmentCourt. The claim is then heard from thebeginning by a justice of the Land andEnvironment Court, usually sitting with acommissioner who is Aboriginal.Either party may appeal from the decisionto the NSW Court of Appeal (Land andEnvironment Court Act 1979 (NSW), s 57).When a claim is grantedOnce a claim is granted the land is transferredas freehold to the claimant Aboriginalland council.Leaseback as national parkSection 36A of the Aboriginal Land Rights Actallows land to be leased back to the NationalParks and Wildlife Service as a nationalpark.This is a useful option where the lands arerecognised by the local land council asrequiring protection for natural or culturalheritage values. Under s 71AE of the NationalParks and Wildlife Act 1974 (NSW) theMinister pays rent for the land to the LocalAboriginal Land Council that owns theland. The leased land is managed by a boardof management under s 71AN of the Act,under which a majority of the board must beAboriginal people. The board must alsoprepare plans of management for the landsunder its control. Boards of managementhave access to funds to perform their functionsthrough s 71AQ of the National Parksand Wildlife Act.Purchase of landsThe Aboriginal Land Rights Act provided forthe NSW Aboriginal Land Council to bepaid 7.5% of the land tax collected each yearfrom 1983, when the Act was proclaimed,until 1998. Half the money had to be

2 Aboriginal people and the law 57allocated to an investment fund, and half toadministration and land acquisition.The investment fund now contains approximately$500,000,000. The interest ismade available to local Aboriginal landcouncils for administration and, potentially,land acquisition.Acquisition by the MinisterIf the Minister for Aboriginal Affairs believesthere are exceptional circumstancesjustifying the acquisition of land to satisfythe objectives of the Act (s 39), the ministermay acquire it.The power has been exercised only once,when Wellington Common was acquiredand then transferred to the traditional ownersin 2001 through an Indigenous agreementreached to resolve a native title claimto the Common.Access for hunting, fishing andgatheringUnder s 47 of the Act, local Aboriginal landcouncils may enter into agreements withlandholders to obtain access onto or acrosslands for hunting, fishing or gathering oftraditional foods. Under s 48, a local landcouncil that has been unable to negotiate anagreement may apply to the registrar, appointedunder the Act, who must refer thematter to the Land and Environment Court.The court may then issue a permit.It is an offence to refuse access after apermit has been issued.Rights to minerals and royaltiesUnder the Act, ownership of all mineralsexcept gold, silver, coal and petroleum istransferred from the Crown when land isacquired by a local Aboriginal land council.The land council can then veto mining(except for the reserved minerals), or consentto mining and receive royalties.Rights to deal with the landA land council may only deal with the landunder detailed provisions of the Act. “Dealingwith” land is very widely defined andincludes not just selling or mortgaging it butalso making an application to a consentauthority to undertake development on theland, such as subdividing or constructingbuildings. The NSW Aboriginal Land Councilmust be satisfied that all the proceduralrequirements imposed by the Act have beencomplied with, and that the cultural value ofthe land has been taken into account whenthe Local Land Council resolves to deal withthe land. In particular, land which is transferredunder the Act and which may besubject to native title must be cleared ofnative title by a determination that nativetitle does not exist. A dealing done by a landcouncil in breach of these provisions is void(s 42C).[2.350] Native titleUnder common lawIn Mabo v State of Queensland No 2, the HighCourt held that the common law of Australiarecognises Aboriginal and Torres StraitIslander title to land under traditional laws.The common law definitionNative title is recognised by the commonlaw as a bundle of rights affecting landwhich is based on the traditional laws andcustoms of Indigenous people until:• it is extinguished by an act of the Crown,or• the people lose their traditional connectionwith their land.Many aspects of the common law relating tonative title remain unclear. These includethe effect on native title of specific Crowngrants and other dealings (see Wik and othercases at [2.360]).

58 The Law HandbookExtinguishmentNative title is extinguished by legislationpassed by the States where there is a clearlegislative intention to that effect. This intentionmust be found by looking at the wordsof the relevant statute, and its purpose andcontext, to see whether the rights that thestatute vested in the Crown or authorisedthe Crown to grant to others were inconsistentwith all native title rights that mightsubsist in the land.Where the Crown does grant or vest suchan interest in land, native title is extinguishedto the extent of the inconsistency(see Extinguishment of native title at[2.360]). The recent decision of the HighCourt in Western Australia v Brown [2014]HCA 8 shows that the legislative provisionsmust be clearly inconsistent with any exerciseof native title rights to result inextinguishment. In that case, a mining companywas granted rights under the MountGoldsworthy mining lease and the Iron Ore(Mount Goldsworthy) Agreement Act 1964(WA) to construct a township to house mineworkers. Even though the land was intensivelydeveloped to create the township,there was held to be no inconsistency withall native title rights so as to bring abouttotal extinguishment. This conclusion wassupported by the requirement that the miningcompany had to permit the State andany other person to have access to the arealeased except where that access would undulyinterfere with the mining operations.That requirement pointed to an intention torecognise rights in third parties to haveaccess to the area of the lease. The fact thatsome areas might be so developed as toprevent access (by building houses andtownship facilities) did not mean that thelease as a whole had the effect of extinguishingrights, as it was the nature of the rightsgranted (and not the way in which theymight be exercised) which had to beconsidered. Karpany v Dietman [2013] HCA47 confirms that legislation to regulate aright is unlikely to result in extinguishmentbecause the regulation of a right assumesthat the right continues to exist.What kind of rights?In 2002, the High Court handed down its decision inWestern Australia v Ward (2002) 213 CLR 1, settling theargument as to whether native title rights were suigeneris rights and interests (that is, different from otherkinds), or merely a bundle of rights recognisable atcommon law. It found that native title was properlyrecognised as a bundle of rights and interests.The effect of this decision is debatable: at the very leastthe finding allows the court to determine native titlerights and interests as individual strands rather than asan indivisible whole. The decision in Akiba v Commonwealth[2013] HCA 33 suggests, however, that a broadlystated right (for example, to fish) cannot be cut down byseparating out the purposes for which the right might beexercised and finding partial extinguishment of the rightby legislation which impacts on the exercise of thatright. In that case a native title right to fish included aright to fish for non-domestic or commercial purposes,as State and Commonwealth laws prohibiting commercialfishing without a permit regulated only one aspectof the exercise of the native title right.[2.360] Under the Native TitleActThe legislative definitionNative title is defined in s 223 of the NativeTitle Act 1993 (Cth) as the communal, groupor individual rights and interests of Aboriginalpeoples or Torres Strait Islanders inrelation to land and waters, where:• the rights and interests are possessedunder traditional laws acknowledged, andtraditional customs observed, by thepeople concerned, and• the people have a connection with theland or waters by those laws and customs,and• the rights and interests are recognised bythe common law of Australia.The original Native Title Act also contained asection that provided that the common lawof native title (as developed in the Mabodecision) had effect as a law of theParliament, but that section was found to beunconstitutional in 1995 in the Native TitleAct case (WA v Commonwealth (1995) 183CLR 373) which held that the decision in

2 Aboriginal people and the law 59Mabo which held that the common lawcould not validly have the same effect aslegislation passed by Parliament. In 2002 theYorta Yorta case held that the statute stoodalone and had to be interpreted in its ownterms.The Yorta Yorta caseIn the 2002 Yorta Yorta case (Members of the Yorta ship of the lands and waters in question existed atYorta Aboriginal Community v Victoria (2002) 214 CLRthe time of annexation by the British, and422), the High Court held that the test to be applied to • the descendants of those people now have laws anddetermine whether native title existed and could be customs derived from those original laws andrecognised was to be found in the Native Title Act customs.(s 223). The effect of the decision is to make proof of native titleThe court also held that the test required applicants to very difficult for those Aboriginal people from the southdemonstrate that:east of Australia, where the effects of invasion have• a set of laws and customs in relation to the owner- been felt longest.Rights and interests recognised in a native areas, and can include the right to fish andtitle determination might include hunting to protect sites of cultural significanceand fishing rights (s 223(2)). Native title can (Yarmirr v Northern Territory; Commonwealth vexist in the seas and seabed in offshore Yarmirr (2001) 208 CLR 1).The High Court has made observations on the principlesto be applied in determining the effect of pastoral leaseson native title rights.WikIn Wik Peoples v The State of Queensland (1996) 187 CLR1, the High Court held by a majority of four to three thatbecause the pastoral leases in question were not trueleases as understood by the common law, and did notconfer a right to exclusive possession, they did notnecessarily extinguish native title. The court also ruledthat where the rights of pastoralists and those of nativetitle holders were in conflict, the rights of pastoralistswould prevail.Freehold and native titleIn Fejo v Northern Territory (1998) 195 CLR 96, the HighCourt made clear that a freehold interest extinguishesnative title, and that once extinguished native titlecannot revive.Must Aboriginal people live on their land?In Yarmirr, the majority of the High Court found thatAboriginal people did not necessarily need to live on ortravel to their lands to maintain the necessary connectionwith country for native title to be recognised.This is of particular importance for Aboriginal peoplefrom NSW, who have been removed from their traditionallands in the past. It is still necessary, though, thatapplicants for native title have maintained traditionallaw and custom in respect of the country they claim (DeRose v State of South Australia (No 2) (2005) 145 FCR290). Native title can still be recognised even if theWik and other casesgrantee of a pastoral or mining lease has the right toundertake extensive development on the area claimed,provided that the rights under the lease are not totallyinconsistent with all native title rights: Western Australiav Brown [2014] HCA 8.Right to hunt and fishIn Yanner v Eaton (1999) 201 CLR 351, the High Courtconfirmed that a native title right to hunt, given force inthe Native Title Act, would not be extinguished bylegislation seeking to assert ownership of wildlife as“property”. A similar conclusion was reached in Karpanyv Dietman in relation to laws regulating the right to fish,where prohibition on the right to take shellfish without apermit did not extinguish the traditional right to takethem.RiskRisk v Northern Territory of Australia (2007) 240 ALR 75concerned native title determination applications madeon behalf of three groups of the Larrakia peoples inrelation to land and waters in and around Darwin in theNorthern Territory. The claim area comprises manysections of land and waters within an overall area ofabout 30 square kilometres. The primary judge (Risk vNorthern Territory of Australia [2006] FCA 404) dismissedthe applications because he found the present society ofthe Larrakia peoples did not now possess the rights andinterests possessed at the time of sovereignty, becausetheir current laws and customs were not “traditional” inthe sense required by s 223(1) of the Native Title Act asexplained in Yorta Yorta. The judge found that there was

60 The Law Handbookno contemporary evidence to suggest that all, or most,of the cultural practices of the Larrakia people whichwere observed during the latter part of the nineteenthcentury continued to be practised. During the periodfrom WWII to 1970 the Larrakia people were removedfrom the claim area, Darwin, to Berrimah and required tohold a permit to enter their traditional lands. The FullCourt dismissed the appeal, holding that the applicantgroup had failed to show continuity in observance oftraditional law, and that the laws and customs had beentransmitted in a traditional way. Although Yorta Yortaaccepts that law and custom may adapt to the pressuresof colonisation and yet still be traditional, the claimgroup must demonstrate that observance of law andcustom continues to be observed and acknowledged inways that remain true to the pre-colonial system of law.Compulsory acquisition of Native TitleIn 2008 the High Court held that the Northern Territorygovernment's compulsory acquisition (extinguishmentunder s 24MD(2) of the Native Title Act of native titleland and rights “for any purpose whatsoever” was avalid exercise of executive power for the purpose ofleasing and disposing of that interest into private handsunder s 43 of the Crown Lands Act 1992 (NT). Kirby J (indissent) refused to take “a purely literal approach” tocompulsory acquisition “for any purpose whatsoever”and recounted previous High Court decisions recognisingthe “spiritual, cultural and social connection” inherentin native title. His Honour said that the decision inWard did not cast doubt on that principle or its significanceas a distinguishing feature of native title and alsothat the acquisition was required to be on just terms.Formerly, the Territory could only compulsorily acquireland for public purposes; however, the term “public” hadbeen removed. Kiefel J, who also disagreed with themajority, was unable to dismiss the relevance of otherpublic purpose cases without express words in thestatute confirming the abrogation of the previous law.On this point Kirby J said “legislation depriving individualsof established legal rights must be clear andunambiguous”. The majority, however, had found thatthe provision was not ambiguous (Griffiths v Minister forLands, Planning and Environment (2008) 235 CLR 232).The later case of Wurridjal v Commonwealth of Australia(2009) 237 CLR 309 did confirm that Territory laws forthe acquisition of property were required to makeprovision for just terms compensation.Bodney v BennellIn Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84the Full Court held that the FCA applied the wrong test indetermining whether the claimants had continued toacknowledge and observe traditional laws and customsfrom sovereignty to the present and also that continuityof connection to country could be established byevidence of continuity of a society. The trial judge hadfailed to consider whether the claimants could establishcontinuing connection to the area under claim. It wasnot enough for the trial judge to rely on the claimant'sestablished connection with the claim area of the singleNoongar claim as a whole (which was much larger thanthe claim in respect of Perth) to establish that aconnection with the Perth area observed by their ancestorsat the time of sovereignty had continued substantiallyuninterrupted since sovereignty.Purpose of the legislationThe purpose of the Native Title Act 1993,which was extensively amended in 1998, isto:• validate acts that were invalidated by thedecision in Mabo (No 2)• establish a process to determine the natureand extent of native title• regulate how native title can be dealtwith in the future• recognise and protect native title.Extinguishment of native titleThe Act confirms that previous exclusivepossession acts extinguish native title, andprevious non-exclusive possession acts extinguishnative title to the extent of anyinconsistency.Previous exclusive possession acts includecertain interests created before 23 December1996 (the date of the Wik decision), such as:• freehold estates• commercial leases• exclusive agricultural or pastoral leases• residential leases• community purpose leases• interests appearing in Sch 1 of the Act• any lease conferring a right of exclusivepossession.Acts that do not extinguish native titleInterests granted or created for the benefit ofAboriginal people, and those involving thecreation of national parks or involving aCrown-to-Crown grant, are not previousexclusive possession acts.

2 Aboriginal people and the law 61Disregarding extinguishmentWhere members of a claimant group occupyland over which a claim is made, and theland has been granted under legislation forthe benefit of Aboriginal and Torres StraitIslander people, the extinguishing effect ofpast grants must be disregarded under s 47(pastoral leases held by applicants), s 47A(reserve trusts, freehold land granted for thebenefit of Aboriginal people or Torres StraitIslanders), or s 47B (vacant crown land).Validation of past actsThe Native Title Act 1993 validates all pastCommonwealth acts (s 14), and permits thestates to validate their past acts without thethreat of invalidity because of inconsistencywith the Racial Discrimination Act 1975 (Cth)(s 19). Validation by the states must conformwith the principles in the Native Title Act.A past act is a grant of an interest before1 January 1994, or a legislative Act donebefore 1 July 1993 that would have beeninvalid with respect to native title due toinconsistency with the Racial DiscriminationAct 1993.Interests created by past actsThe interests created by past acts have beencategorised into four groups:• A – freehold, public works, andcommercial, agricultural or pastoral leases• B – other leases, except mining leases• C – mining leases• D – all others, including Crown reservationsand grants of Aboriginal land.Validation of interestsThe validation of each group of interests hasa different effect on native title (ss 15,229 – 232).• The validation of a category A interestextinguishes native title.• The validation of a category B interestextinguishes native title to the extent ofany inconsistency.• The validation of a category C or Dinterest puts native title on hold – nativetitle revives when the category C or Dpast act expires.“Intermediate period acts”The Native Title Act also provides for validationof “intermediate period acts” – actsbetween 1 January 1994 and 23 December1996 that would have been valid but for theexistence of native title (Div 2A).CompensationNative title holders are entitled to compensationfor any extinguishment and impairmentof native title arising from validation(ss 17, 20, 22D, 22G). The compensationmust be on “just terms” under ss 51 and 53of the Native Title Act and must not exceedthe amount that would be payable if theland were freehold, unless the compensationclaimants request compensation through thetransfer of property or the provision ofgoods and services or some combination ofmoney and other interests, s 51(6). It is adifficult question whether the “just terms”compensation could exceed the market valueof the freehold, because while s 51A providesthat the freehold value is a limit on theamount of compensation awarded, it is theConstitution that provides that the compensationmust be on just terms. Just termsrequires the compensation for compulsoryacquisition to be “fair and just” (Commonwealthv Tasmania – Tasmanian Dam Case(1983) 158 CLR 1). Before a determination ofcompensation is made, the Court must makea determination that native title had onceexisted in the area for which compensationis claimed, and has been extinguished in amanner that gave rise to a right to compensation– that is, if the grant was validated bythe Native Title Act, or was done by theCommonwealth, State or a Territory andengaged the requirement to give “just terms”compensation.Right to compensation?In Jango v Northern Territory of Australia [2006] FCA 318(31 March 2006), Justice Sackville of the Federal Court ofAustralia held that the traditional owners of the landsaround Uluru (Ayers Rock) had failed in the presentproceeding to prove they were the owners of native titlerights that had been extinguished or affected. On appeal,the Full Court of the Federal Court noted the necessityto prove continuity of the society and its traditional lawsand customs which had not been established by theevidence presented during the hearing. This was the firsttime a compensation application under the Native Title

62 The Law HandbookAct had proceeded to hearing by the Federal Court. In DeRose v State of South Australia [2013] FCA 988 MansfieldJ made a consent determination in relation tocompensation for the extinguishment of the native titlerights of the De Rose Hill native title holders (asdetermined by the Full Court in De Rose v South Australia(No 2) (2005) 145 FCR 290). Due to resolution of thecompensation application by consent between the nativetitle holders and the State the terms of theagreement remain confidential.[2.370] Lodging a claimThe Native Title Act sets out the process bywhich native title rights and interests can bedetermined.Claims are lodged with the Federal Court,which has exclusive jurisdiction to hear anddetermine native title applications. This doesnot mean that other courts cannot deal withnative title issues in particular circumstances(see Wilson v Anderson [1999] NSWSC 8,20 January). Aboriginal people can lodgeapplications to:• determine that native title exists• revoke or vary a determination of nativetitle• determine compensation for extinguishment(s 13).Claims must be lodged in a prescribedmanner and comply with Federal Courtrules. NSW NTSCORP is funded by theCommonwealth government to provide nativetitle services to traditional owners whoclaim native title rights and interests inNSW.What the application must containApplications must contain:• a clear definition of the people claimingthe native title rights• information on the extent and nature ofthe rights and interests claimed• information allowing boundaries to beeasily identified• a description of the facts that are the basisof the claim• details of the current activities of theclaimant group on the land (s 62(2)).What cannot be claimedA claim may not cover an area where nativetitle has already been determined or thatwas the subject of a previous exclusivepossession act (see Extinguishment of nativetitle at [2.360]), nor can it be for exclusivepossession, occupation and use if the area isthe subject of a previous non-exclusivepossession act (s 61A).Where previous extinguishment may be ignoredThe previous extinguishment of native titlemay be ignored where native title claims arelodged over:• certain freehold interests or pastoral leasesheld by or for the benefit of Aboriginalpeople (ss 47, 47A), or• vacant crown land occupied by Aboriginalpeople at the time the application islodged (s 47B).Registration of native title claimsSome procedural rights conferred by theNative Title Act, including the right tonegotiate, are available only to native titleclaimants whose claims are registered. Whenan application is filed in the Federal Courtthe court must provide a copy to theNational Native Title Tribunal.The registrar of the Tribunal (the NativeTitle Registrar) then assesses the applicationagainst the threshold test provided in theNative Title Act. In short, the Registrar mustbe satisfied that:• the claim has been properly authorisedby the claim group• the area claimed and the people makingthe claim are adequately described• the rights and interests claimed are setout• there is some evidence which, on its face,would demonstrate that native title rightsand interests may exist.If the claim has not been properlyauthorised, it may be struck out, but theFederal Court has a discretion to permit theclaim to progress even if the authorisationrequirement is not met.Notification requirementsWhether or not the claim is registered, theRegistrar must give notice of any applica­

2 Aboriginal people and the law 63tion referred to him or her to persons orbodies that may include:• other native title claimants or bodies• other bodies representing Indigenouspeople who may be affected• relevant Commonwealth or stateministers• anyone who has a proprietary or otherinterest in the area affected• anyone who may have an interest in theproceedings (s 66(3)).A person is entitled to become a party to anative title claim if their interests may beaffected by a determination in the proceedings(s 84).[2.380] Future acts affectingnative titleThe Native Title Act regulates the way inwhich native title is to be affected by futureacts.A future act is:• the making, amendment or repeal oflegislation after 1 July 1993, or• any other act after 1 January 1994, whichaffects native title. To affect native title, anact must be wholly or partly inconsistentwith the continued existence, enjoymentor exercise of native title rights (s 227).A future act is invalid if it does not complywith the Act (s 24OA). If a future act isinvalid, it has no effect on native title rightsand interests. The Native Title Act (s 7)expressly provides that the Racial DiscriminationAct 1975 applies to the performanceof functions and the exercise of powersconferred or authorised by it.Native title holders and registered nativetitle claimants have different proceduralrights, depending on the nature of the futureact.What acts are included?Some common types of future act that mayaffect native title rights and interests and theprocedural rights expressly provided by theNative Title Act are described below. If thefuture act is not specifically dealt with in aparticular section, it is subject to the generalrequirement of non-discrimination, and nativetitle holders have the same proceduralrights as non-native title holders:• Agreements with native title claimants,Indigenous land use agreements (ILUAs),which may relate to activities in particularregions or procedures to apply in aparticular region, can override the proceduresof the Act. The Act prescribes howILUAs may be reached and registered(ss 24BA – 24FE).• If native title is found not to exist, or anapplication is made by a non-native titleparty, and after three months there is noregistered native title claimant, any futureact occurring in the area is valid. If nativetitle is later found to exist, the act remainsvalid (s 24FA) but compensation may bepayable for the effect of the act on nativetitle.• Most future acts relating to primaryproduction activity are valid. These includecultivating land, keeping, breedingor agisting animals, catching fish, andhorticultural and aquacultural activities.Such acts do not extinguish native titlerights, and native title holders are entitledto compensation.• Legislation dealing with the regulation ormanagement of water, living aquatic resourcesand airspace is valid. Aboriginalpeople must be notified beforehand, andmay comment. Native title rights are notextinguished, and native title holders areentitled to compensation (s 24HA).• The exercise of a legally enforceable rightcreated before 23 December 1996, and therenewal, re-grant or extension of certainlicences, leases and permits, are valid(s 24IC). The renewal, re-grant or extensionmust not create a right of exclusivepossession over any of the area coveredby the lease, or create a new proprietaryinterest. Native title holders are entitledto compensation.• Acts done by the government in relationto a dedication, reservation, condition,permission, authority or lease are valid(s 24JB). Native title is extinguished onlyif the act comprises a public work. Nativetitle holders are entitled to compensation.• The construction, use, maintenance orrepair of facilities for services to the

64 The Law Handbookpublic which do not prevent Aboriginalpeople having reasonable access to theirland are valid. Native title is not extinguishedby the act, and compensation ispayable. Native title holders have thesame procedural rights as other titleholders in relation to such acts (s 24KA).• Certain “low impact” future acts are validif they occur before a determination thatnative title exists. Native title is notextinguished by those acts (s 24LA).• Other categories of future acts mustcomply with the “freehold title test”(s 24MA), which generally means that anact is valid if it could be done if the nativetitle holders held freehold title. It doesnot apply to offshore areas. Native titleholders have additional procedural rightsin certain compulsory acquisition matters(s 24MD(6B)).• Acts in offshore places are valid. Exceptin the case of compulsory acquisitions,native title is not extinguished. Nativetitle holders have the same proceduralrights as other title holders (s 24NA).• A special right to negotiate applies tofuture acts involving the grant of certainmining interests and compulsory acquisitions(ss 25–44).Native title can be validly extinguishedunder the future act regime, for examplewhere native title rights and interests aresubject to compulsory acquisition, but generallythe non-extinguishment principleapplies, and the native title holders areentitled to compensation for the impairmentof native title. In some cases, the future actwill be valid notwithstanding that the proceduralrequirements might not be observed(for example, under s 24KA – Lardil Peoples vQueensland [2001] FCA 414; (2001) 108 FCR453).Hunting, gathering and fishingThe Act provides for the preservation ofhunting, gathering and fishing rights, andcultural activities as long as they are noncommercialand amount to the exercise ofnative title interests. These activities mayoccur even if a licence is required for suchactivities by non-native title holders (s 211and Yanner v Eaton (1999) 201 CLR 351).The High Court has confirmed that acoastal grant of Aboriginal land in theNorthern Territory stretches to the lowwater mark and includes the intertidal zone.Significantly, coastal native title holders inthe Northern Territory have a right toexclude others from an Aboriginal intertidalzone. Recognition of this right greatly enhancesthe negotiating power of native titleholders regarding public access to the intertidalzone and commercial interests in thosenatural resources (Northern Territory v ArnhemLand Aboriginal Land Trust (2008) 248ALR 195 (Blue Mud Bay case)). The case didnot consider the status of grants under otherland rights legislation. In NSW, grants madeunder the Aboriginal Land Rights Act willonly extend to the limits of the land claimed,which is usually defined by the depositedplan, but may extend to the mean highwater mark. Where native title is recognisedin coastal waters, the right will be subject tothe general public right to fish and of safenavigation, and native title will not beexclusive: Commonwealth v Yarmirr [2001]HCA 56; (2001) 208 CLR 1.[2.390] Resource lawA number of laws regulate the protection,use, exploitation and management of naturalresources in NSW. Many of them makespecial provision for the involvement ofAboriginal people.[2.400] FishingThe Fisheries Management Act 1994 (NSW)states that it is not intended to affect nativetitle rights (s 287). An amendment in 2000 tointroduce a general salt water recreational

2 Aboriginal people and the law 65fishing licence allows exemptions from feepayment for Aboriginal people who are partof the native title claimant group for an areain which there is a registered native titleclaim.Exemptions can also be granted to Aboriginalpeople to fish for cultural purposesunder s 37 of the Fisheries Management Act1994. In practice, the exemptions are grantedby NSW Fisheries on production of a letterfrom the relevant local Aboriginal landcouncil. In 2009, the Fisheries ManagementAct 1994 was amended to introduce a rightto fish for the purpose of Aboriginal culturalfishing (fishing for the purpose of satisfyingpersonal, domestic or communal needs, orfor educational, ceremonial or other traditionalpurposes, and which do not have acommercial purpose) but that amendmenthas not yet been proclaimed to commence(as at 1 October 2014).Forests and Crown landsThe Forestry and National Park Estate Act 1998(NSW) transfers certain former state forestsand Crown lands to local Aboriginal landcouncil ownership.[2.410] Marine parksThe Marine Parks Act 1997 (NSW) states thatit is not intended to affect native title rights,and provides for Aboriginal representationon the Marine Parks Advisory Council.[2.420] Land clearingThe Native Vegetation Act 2003 (NSW) effectivelygoverns land clearing and repeals theNative Vegetation Conservation Act 1997(NSW). The Act provides for the certificationof property vegetation plans, which must beconsistent with the catchment managementplan for the particular catchment.Unlike the previous legislation, the NativeVegetation Act 2003 contains no requirementfor consultation with Aboriginal people ororganisations.[2.430] CatchmentmanagementThe Catchment Management Authorities Act2003 (NSW) set up 13 catchment managementauthorities covering the whole ofNSW. The authorities had boards of five toseven people, and developed draft catchmentmanagement plans for considerationby the Natural Resources Commission. Theauthorities replaced most of the existingnatural resource advisory councils andcommittees. This legislation was replaced in2013 by the Local Land Services Act 2013(NSW) which revised the boundaries andabolished the catchment management authoritiesin favour of a statutory authority,the Local Land Service, and local landboards.The Local Land Services Act 2013 does notmake provision for Aboriginal membershipof the authority, or on local land boards, butthe authority and the local boards arerequired to develop a strategy for engagingwith the Aboriginal community in the regionin relation to local land services. Theseservices are broadly defined to includebiosecurity, chemical management, stockmovements, agricultural planning and naturalresource management. The regulationsprovide that one of the skills which isrelevant for membership of a local landboard is the ability to work with Aboriginalgroups and communities, but it is not amandatory requirement.The Natural Resources CommissionThe Natural Resources Commission, under the NaturalResources Commission Act 2003 (NSW), replaces anumber of committees that had Aboriginalrepresentation. There is no guaranteed representationfor Aboriginal people on the commission, but it doeshave guiding principles that it must adhere to in makingits decisions, which include the “Indigenous knowledgeof natural resource management” (s 14(e)).

66 The Law HandbookHeritage and culturalprotection[2.440] Protection of heritageThe three main NSW laws that addressaspects of Indigenous cultural heritage arethe:• National Parks and Wildlife Act 1974 (NSW)(NPW Act)• Heritage Act 1977 (NSW)• Environmental Planning and Assessment Act1979 (NSW).At the national level, the main laws thataddress aspects of Indigenous cultural heritageare the:• Environment Protection and BiodiversityConservation Act 1999 (Cth)• Aboriginal and Torres Strait Islander HeritageProtection Act 1984 (Cth)• Protection of Movable Cultural Heritage Act1986 (Cth).[2.450] The National Parks andWildlife ActCultural sites and objectsSites of cultural significance to Aboriginalpeople can be protected under the NationalParks and Wildlife Act 1974. These mayinclude:• sacred sites• burial places• rock art• artefacts or relics• occupation sites, including axe-grindinggrooves.Aboriginal areasUnder s 30K of the Act, land can be reservedas an Aboriginal area. The purpose of thesection is:to identify, protect and conserve areas associatedwith a person, event or historical theme,or containing a building, place, object, featureor landscape:(a) of natural or cultural significance to Aboriginalpeople, or(b) of importance in improving public understandingof Aboriginal culture.Aboriginal objects and placesAn Aboriginal object is defined as “anydeposit, object or material evidence” relatingto Aboriginal habitation, including Aboriginalremains (s 5). An Aboriginal place is aplace that has been declared by the governmentto be of special significance to Aboriginalculture (s 84).Role of the Department of the EnvironmentThe Director-General of the Department ofthe Environment has care and control ofAboriginal heritage items and places. TheDirector-General can issue permits unders 90 of the Act that allow someone toexcavate, destroy or otherwise disturb a site,or place, or object. Under s 86, it is anoffence to harm or desecrate an Aboriginalobject or place, unless the Director-Generalhas issued a permit under s 90, or theimpact is a low-impact activity prescribedby regulation, or the defendant has exercisedreasonable due diligence to determinethat no Aboriginal object or place would beharmed by the activity.A register of Aboriginal objects, placesand sites is kept by the Department of theEnvironment and is called the AboriginalHeritage Information Management System.The register can be searched to see ifanything is listed on your land. Applicants

2 Aboriginal people and the law 67for permits to destroy Aboriginal culturalheritage must consult with the Aboriginalcommunity about the cultural significance ofthe sites, objects or places. The views of theAboriginal community may be taken intoaccount by the Director-General when decidingto grant or refuse the permit. A DueDiligence Code of Practice for the Protectionof Aboriginal Objects in NSW has beenpublished to guide interest holders in howto deal with Aboriginal cultural heritageissues. Compliance with the guide enablesthose seeking permits for activities that mayaffect Aboriginal places and objects, to demonstratethat due diligence has been shownwhich would be a defence to a prosecutionfor harm to an object or place. Where anaction is likely to significantly affect anAboriginal object or place, the Director-General:• may make stop work orders• must consult with the person proposingthe detrimental action about modifying it.The Director-General also has the power tomake interim protection orders over land.Destruction of Aboriginal sitesIt is an offence to destroy, deface or damage anAboriginal object or place, ss 86(2), (4), (5) and (8) NPWAct. Amendments in 2010 to the NPW Act removed therequirement that such harm was caused “knowingly”. InHistollo Pty Ltd v Director-General National Parks andWildlife Service (1998) 45 NSWLR 661, the defendant wasable to argue that he did not know he had destroyed aparticular site even though it was a registered site andhe had been told that there were sites on the property.Ownership of Aboriginal objectsCertain Aboriginal objects are declared to be owned bythe NSW government, unless they were privately ownedbefore 1969 or returned to the Aboriginal owner.Agreements with private landownersThe government can also enter into agreements withlandowners to ensure the protection of Aboriginal objectsor places of significance on private land.Sites vested in Aboriginal land councilsOwnership of land can be vested on behalf of theAboriginal owners in an Aboriginal land council on thebasis that it is leased back to the National Parks andWildlife Service. The Act contains a list of such vestedlands.Lease back of Aboriginal sitesThe following lands are vested in a local Aboriginal landcouncil or the NSW Aboriginal Land Council on behalf ofthe traditional owners, and leased to the Minister for theEnvironment and Water Resources:• Biamanga National Park• Coturandee Nature Reserve• Gulaga National Park• Jervis Bay National Park• Mootwingee Historic Site• Mootwingee National Park• Mount Grenfell Historic Site• Mount Yarrowyck Nature Reserve.• Mungo National Park.Hunting and gathering flora and faunaAboriginal people are exempt from theprovisions of the National Parks and WildlifeAct 1974 that prohibit a person from huntingfauna or picking or gathering flora in awildlife district, wildlife refuge, wildlifemanagement area, conservation area, wildernessarea or area subject to a wildernessprotection agreement. The exemptions onlyapply where Aboriginal people are huntingor gathering for domestic ceremonial orcultural purposes and do not apply tothreatened species or populations or threatenedecological communities within themeaning of the Threatened Species ConservationAct 1995 (NSW).[2.460] Other NSW legislationThe Heritage ActAboriginal objects and places may also beprotected under the Heritage Act 1977 (NSW).Items that can be listed on the State HeritageRegister include places, buildings, work,relics (although relics that relate to theAboriginal settlement of an area are excludedfrom this category), moveable objectsor precincts significant to the state. Theminister can also authorise a local council tomake interim heritage orders in relation toitems of local heritage significance (s 25).Once an item is listed on the State HeritageRegister, or there is an interim heritageorder in relation to it, approval is requiredfor demolition, destruction, excavation oralteration that may affect the item (s 57). The

68 The Law HandbookHeritage Council of NSW maintains theState Heritage Register (s 31) and canendorse a conservation management planfor the management of the State HeritageRegister (s 38A).The Environmental Planning andAssessment ActAboriginal heritage and sites can sometimesbe protected by ensuring that appropriateguidelines are included in the local environmentplans that local councils must developunder the Environmental Planning and AssessmentAct 1979 (NSW). An order forcing aparticular council or shire to adhere to itslocal environment plan may then beobtained, if necessary, from the Land andEnvironment Court.[2.470] CommonwealthlegislationThe Environment Protection andBiodiversity Conservation ActThe Environment Protection and BiodiversityConservation Act 1999 (Cth) protects siteslisted on the World, Commonwealth andNational Heritage Lists. The National HeritageList includes some Indigenous culturalareas. A site can appear on both the stateand the national heritage list.The Aboriginal and Torres StraitIslander Heritage Protection Act 1984Under the Aboriginal and Torres Strait IslanderHeritage Protection Act 1984 (Cth) the federalMinister for Indigenous Affairs can makeorders protecting Aboriginal objects andsites from desecration or destruction, providedthat state-based laws do not adequatelyprotect the object or area. Theminister may also make emergency orderswhere an area or object is facing a serious orimmediate threat.The Protection of Movable CulturalHeritage ActThe Protection of Movable Cultural HeritageAct 1986 (Cth) attempts to regulate theexport of particular objects of significantcultural heritage, including some Aboriginalobjects. The NSW Environmental Defender’sOffice is a community legal centre specialisingin public interest environmental law. Ithas publications with further information onheritage and cultural protection, see:• EDO NSW Fact Sheets on ProtectingHeritage: www.edo.org.au/edonsw• EDO NSW Free publication, Caring forCountry (phone (02) 9262 6989 to order afree copy).[2.480] Copyright and other protectionsCopyrightThe Copyright Act 1968 (Cth) protects thework of Aboriginal and Torres Strait Islanderartists and creators in the same wayas it does that of other Australians (seechapter 13, Copyright). However, it haslimitations in protecting and recognisingIndigenous cultural and intellectual property(ICIP), especially in relation to Aboriginalconcepts of custodianship and communalownership. This has been a feature of anumber of court cases (see Recognisingcommunal rights at [2.510]).[2.490] Moral rightsIn December 2000, the Copyright Act wasamended to incorporate moral rights. Theseare personal, non-economic rights, whichcannot be assigned (transferred), and whichgive the author (the creator) the right:• to be identified as the author of a work(the right of attribution of authorship)• not to have authorship of a work falselyattributed (for example, to another author)• not to have their work subjected toderogatory treatment that prejudiciallyaffects their honour or reputation (the

2 Aboriginal people and the law 69right of integrity of authorship of a work).Moral rights apply to the authors of literary,dramatic, musical and artistic works, and offilms, but do not apply to sound recordings.The government introduced moral rights forperformers in July 2007. These rights applyto live performances or sound recordings oflive performances. Moral rights belong toeach person who contributed to the soundsof the performance, including the conductorof a musical work. There are still no moralrights for performers of audiovisual performanceseg actors and dancers. In 2012 a newinternational treaty, the Beijing Treaty onAudiovisual Performances was adoptedwhich will provide performers with greaterintellectual property rights but it is not yetin force internationally and has not beensigned or ratified by Australia.A moral rights case involving musiciansIn a recent case in the Federal Circuit Court Perez vFernandez [2012] FMCA 2 (10 February 2012), the Courtfound that the change made by DJ Suave (aka JamieFernandez) to Pitbull Perez' Bon Bon song was a material“distortion” or “alteration” (if not a “mutilation”) of thesong and that the Mixed Bon Bon Version was prejudicialto Perez's honour and reputation. Perez was awarded$10,000 damages for the infringement.Recourse for Indigenous artistsMoral rights provide individual Indigenousauthors, creators and performers with remediesfor infringement where the requirementsof the Act are met. These includesituations where:• the author has not consented to theinfringement• the infringing act occurred after the commencementof the legislation and• there is no statutory defence to theinfringement available.A moral rights case involving the wrongattribution of a visual artistThere has been only one moral rights case in Australiainvolving attribution. In September 2006, in Meskenas vACP Publishing [2006] FMCA 1136 (14 August 2006), thecourt found that the moral right of attribution had beeninfringed. The court found the infringement analogousto copyright infringement in terms of the compensationthat should be given, and awarded damages of $9100.Rights of communal ownersSection 190 of the Copyright Act states thatonly individuals have moral rights. Thisdoes not adequately recognise communalownership of Indigenous cultural heritage,and the rights of custodians, according totraditional practices, to maintain integrityand require attribution. Communal ownershipof pre-existing designs is notrecognised.[2.500] Breach of confidenceWhen copyright law is inadequate for protectingsecret–sacred knowledge or culturalknowledge, or a contract has not beenentered into, the law of confidential informationmay provide some protection.A breach of confidence caseIn Foster v Mountford (1976) 14 ALR 71, members of thePitjantjatjara Council took action under breach of confidencelaws to stop the publication of a book entitledNomads of the Australian Desert. Mountford, ananthropologist, made a trip in 1940 into remote areas ofthe Northern Territory, where Pitjantjatjara male eldersrevealed, in confidence, tribal sites and items of deepcultural and religious significance. Mountford latersought to publish the information, with photographs,drawings and descriptions of people, places and ceremoniesof the Pitjantjatjara people. It was argued thatthe dissemination of this information could cause seriousdisruption to Pitjantjatjara culture and society if itwas revealed to women, children and uninitiated men.The court granted an injunction in favour of the PitjantjatjaraCouncil.Copyright law could not have been used by the membersof the Pitjantjatjara Council to protect their secret­–sacred knowledge, as they had not recorded theinformation in writing or some other material form, andwere thus not the copyright owners according to theCopyright Act.

70 The Law Handbook[2.510] Copyright law andIndigenous cultural andintellectual propertyRecognising communal rightsYumbulul v Reserve Bank of Australia (1991) 21IPR 481 concerned a morning star pole, afunerary object created by Mr Yumbululunder the authority given to him as amember of the Galpu clan group. The polewas sold to the Australian Museum forpublic display, a permissible use to educatethe wider community about Aboriginalculture.However, Mr Yumbulul licensed reproductionrights to the Aboriginal ArtistsAgency, which subsequently approved theReserve Bank reproducing the pole on thebicentennial $10 note. Mr Yumbulul wascriticised by his community for exceedinghis authority under customary laws. Accordingto the traditional custodians, it wasnot culturally appropriate for such a sacreditem to be reproduced on money. Mr Yumbululinitiated action in the Federal Court,alleging that he would not have authorisedthe licence to the Aboriginal Artists Agencyand the Reserve Bank had he fully understoodit.While finding that Mr Yumbulul mistakenlybelieved the licence would imposelimitations on the use of the pole similar tothose in Aboriginal customary law, the courtconsidered that “Australia’s copyright lawdoes not provide adequate recognition ofAboriginal community claims to regulatethe reproduction and use of works whichare essentially communal in origin”.Unauthorised reproduction of artworksIn Milpurrurru v Indofurn Pty Ltd (1993) 130ALR 659, the court discussed copyrightinfringement of Indigenous artworks of culturalsignificance to the artist applicants andthe cultural groups to which they belonged.The case involved the unauthorised reproductionof Indigenous artworks on carpetsmade in Vietnam and imported intoAustralia. Significant aspects of the caseincluded the following:• a work may be original if there is sufficientdetail and complexity reflecting skilland originality, even if it is based ontraditional designs• though not identical to the originalartworks, the carpets reproduced centrallyimportant parts. For example, thepart taken from Tim Payunka Tjapangati’spainting Kangaroo and Shield PeopleDreaming depicted a sacred men’s story –one factor that led the court to concludecopyright had been infringed• part of the $188,000 awarded in damageswas given in consideration of the personalhurt and cultural harm done to theartists. The court noted that their standingin the community could be affectedbecause of the culturally offensive misuseof the works, regardless of whether theyhad authorised it.The court made a collective award to theartists rather than individual awards so thatthey could distribute it according to theircultural practices.Collective ownership of artworksIn Bulun Bulun v R & T Textiles Pty Ltd (1998)157 ALR 193, the Federal Court discussedissues of collective ownership and communalcopyright. John Bulun Bulun’s workMagpie Geese and Water Lilies at the Waterholehad been reproduced on fabric importedinto Australia by R & T Textiles. Therespondents conceded that Mr Bulun Bulunwas the copyright owner and reached asettlement with him, leaving the court toconsider only the claims the second applicantGeorge M (since deceased) brought asthe representative of the Ganalbingu people.Those claims asserted that the Indigenousowners of Ganalbingu country were theequitable owners of Mr Bulun Bulun’s copyrightin the work, which embodied imagerysacred and important to the Ganalbingupeople’s cultural heritage.The Federal Court dismissed Mr M’sclaims. However, it offered some interestingcomments on the nature of Indigenouscultural heritage, including that:

2 Aboriginal people and the law 71• the operation of any pre-existing systemof Indigenous collective ownership inartistic works had been extinguished withthe enactment of the Copyright Act• the provisions of the Copyright Act effectivelypreclude any notion of group ownershipin an artistic work, except wherethe work is one of “joint authorship”within the meaning of s 10(1) of the Act• the grant of permission by the Ganalbingupeople to Mr Bulun Bulun to usetheir ritual knowledge in his artwork wasnot enough to create any form of contractualagreement vesting an equitable interestin copyright ownership in Mr M orthe Ganalbingu people nor was it sufficientto create a trust obliging him to holdthe artwork and copyright on trust for theGanalbingu people• however, as a result of the unique relationshipbetween Mr Bulun Bulun andthe Ganalbingu people, equity imposed afiduciary obligation on Mr Bulun Bulunnot to exploit the artistic work in a waycontrary to the law and custom of theGanalbingu people and, in the event ofinfringement by a third party, to takereasonable and appropriate action to remedythe infringement. The court consideredthat Mr Bulun Bulun had done thisby taking action against R & T Textiles.Intellectual property rights and land rightsIt was also argued by the second applicantin the Bulun Bulun case that intellectualproperty rights are an incident of nativetitle, and may constitute an interest in land.The court did not have jurisdiction toaddress this question, as all applications fora determination of native title must complywith the Native Title Act. Subsequent recognitionunder that Act of a form of intellectualproperty rights in relation to land has,however, been limited.Applicants for native title have sought toinclude the protection of cultural rights toproperty as part of the bundle of rights thatmakes up a determination of native titleunder the Act. In Ward v Western Australia(1998) 159 ALR 483, the trial judge concludedthat the claimants had a right tomaintain, protect and prevent the misuse oftheir cultural knowledge of the claim area.Such protection had been sought to protectany inappropriate viewing, hearing or reproductionof secret ceremonies, artworks,song cycles and sacred narratives of theclaimants. The High Court subsequentlyoverturned the trial judge’s finding (seeWestern Australia v Ward (2002) 213 CLR 1),on the basis that such a right was notnecessarily an interest in land capable ofrecognition under s 223(1)(c) of the NativeTitle Act. At [59] the court explained:To some degree, for example respecting accessto sites where artworks on rock are located, orceremonies are performed, the traditional lawsand customs which are manifested at thesesites answer the requirement of connectionwith the land found in par (b) of the definitionin s 223(1) of the Native Title Act. However, itis apparent that what is asserted goes beyondthat to something approaching an incorporealright akin to a new species of intellectualproperty to be recognised by the common lawunder par (c) of s 223(1). The “recognition” ofthis right would extend beyond denial orcontrol of access to land held under nativetitle.In a series of subsequent cases, claimantshave failed to establish any form of a nativetitle right that would entail the restraint ofvisual or auditory reproductions of whatwas found in the claim area (see, forexample, Northern Territory v Alyawarr (2005)145 FCR 442). Instead the Federal Court hasonly been prepared to recognise more limitedrights to maintain and protect significantcultural sites, or to use land for thepurpose of teaching and passing on traditionalcultural knowledge.Taking action as a clanThe court also found in the Bulun Bulun casethat if an artistic work embodying anAboriginal clan’s ritual knowledge was usedinappropriately, and the copyright ownerfailed or refused to take action to enforce thecopyright, the clan could take action throughthe courts.

2 Aboriginal people and the law 73The “Aboriginal” art Aboriginals didn't makeIn August 2008, the Australian Competition and ConsumerCommission (the ACCC) found that a QueenslandAboriginal art dealer was in breach of s 52 for misleadingand deceptive conduct. The Aboriginal art dealer sold artand artefacts made by non-Aboriginal artists and representedthem as being made by Aboriginal artists. TheFederal Court granted injunctions by consent restrainingthe art dealers, for a period of five years, from engagingin similar conduct and ordered them to pay the ACCC'scosts. The art dealers were further ordered to write tocertain purchasers of artworks produced by any of thethree non-Aboriginal artists, advising them of the courtproceedings. The art dealers also have offered the ACCCa court-enforceable undertaking that they will implementa trade practices law compliance program (ACCC vNooravi [2008] FCA 2021).In December 2009, in ACCC v Australian DreamtimeCreations Pty Ltd 263 ALR 487, Justice Mansfield in theFederal Court found that Australian Dreamtime CreationsPty Ltd (“Dreamtime Creations”) misled consumers bymaking misleading representations about artworks usingIndigenous art styles. The Court held that DreamtimeCreations breached s 52 of the Trade Practices Actwhich prohibited corporations from engaging in misleadingor deceptive conduct. The Court found that thecompany's sole director, Tony Antoniou, was knowinglyconcerned in the conduct, and made orders designed toprevent both Dreamtime Creations and Mr. Antonioufrom engaging in similar conduct in the future.In the Dreamtime Creations case, the company promotedand sold a large quantity of artworks that wererepresented to be Aboriginal art painted by an artistcalled “Ubanoo Brown”. In reality the artworks were notpainted by Ubanoo Brown but rather a person ofnon-Aboriginal descent engaged by Mr Antoniou. Artgalleries were supplied with “Certificates of Authenticity”that used terms such as “Authentic AboriginalPainting”, “Aboriginal Fine Art Canvas” and “Artist:Ubanoo Brown”. Some artworks also had stamps affixedto them that said either “Traditional Hand PaintedAboriginal Art Australia” or “Authentic Australian AboriginalArt”.Whilst the CCA will provide assistance incases where the manufacturer or retailer ismaking clear assertions that work whichwas made by non-Aboriginal artists is “Aboriginal”or “authentic Aboriginal art” itwill not assist when the circumstances arenot so clear-cut. In the Australian DreamtimeCreations case a wooden bird that was carvedoverseas, imported into Australia with theartwork added here could still be sold as“made in Australia” if the work was sufficientlytransformed through the applicationof painted decoration. Rather than assistingIndigenous crafts persons, some provisionsof the CCA make the situation even murkier.[2.540] Better protection ofIndigenous cultural andintellectual property (ICIP) isstill neededIn 1997, the Aboriginal and Torres StraitIslander Commission and the AustralianInstitute for Aboriginal and Torres StraitIslander Studies commissioned a seminalreport on Indigenous cultural and intellectualproperty rights. The independent reportby Terri Janke was released in 1999 as OurCulture: Our Future – Report on AustralianIndigenous Cultural and Intellectual PropertyRights. It found that existing cultural heritageand intellectual property laws do notadequately protect Indigenous interests, andargued that:• Indigenous Australians have a comprehensiveview of cultural and intellectualproperty as including:– literary, performing and artistic works– scientific, agricultural and technicalknowledge– language– human remains– documentation of Indigenous people’sheritage in archives, films, photographsand new media• the principles underlying ownership andcontrol of cultural and intellectual propertyrelating to communal ownership,cultural integrity and consent proceduresare consistent across Indigenous groups• Indigenous Australians are concernedabout increasing demands for Indigenouscultural and intellectual property, andthat due to these demands and to newtechnology, their cultures are being exploitedbeyond their control• current intellectual property law is inadequatein protecting Indigenous culturaland intellectual property

74 The Law Handbook• a comprehensive and coordinated approachto protection is needed, to bedeveloped in full consultation with, andadministered under the control of, Indigenouspeople.Our Culture: Our Future lists a range ofproposals for recognising Indigenous culturaland intellectual property rights, including:• developing new and amended legislation• adapting administrative systems to includemonitoring and collection systems• developing cultural infrastructure, protocolsand codes of ethics.It is available at www.austlii.edu.au/au/journals/AILR/1999/51.html.Labelling authentic productsIn 1999, the then National Indigenous ArtsAdvocacy Association launched a nationalcertification project. Two trademarks calledthe label of authenticity and the collaborationmark were registered under the Trade MarksAct 1995 (Cth). In 2002, the National IndigenousArts Advocacy Association’s officeclosed and, in 2008, the trade mark registrationsexpired. The label of authenticity andthe collaboration mark ceased to be regulatedby any Indigenous or governmentbodies. The labels had limited success, possiblybecause the system involved costs tothe Aboriginal artists and required Aboriginalpeople to prove their work wasauthentic.A more recent approach to providingprotection to both Indigenous artists andconsumers of Indigenous art is the IndigenousArt Code. The development of theIndigenous Art Code was recommended bythe Senate Committee which inquired intoirregularities and exploitation in the Indigenousart market and reported in 2007Indigenous Art – Securing the Future at www.aph.gov.au/binaries/senate/committee/ecita_ctte/completed_inquiries/2004-07/indigenous_arts/report/report.pdf.Indigenous Art CodeThe Indigenous Art Code was launched inNovember 2010 after extensive developmentand consultation to encourage fair tradewith Indigenous artists. Dealers, artists andsupporters can join to show their commitmentto fair and transparent businessdealings. Purchasers who deal with membersof the Indigenous Art Code can proceedwith greater certainty knowing that theartworks they buy come through ethicalprocesses. A list of dealer members isavailable at www.Indigenousartcode.org/index.php/registered-members.The Indigenous Art Code requires dealermembers to act honestly when dealing withIndigenous artists, and prohibits them frommaking false or misleading representationswhen dealing with a person in connectionwith an artwork. The Indigenous Art Codecompany can also be contacted if you have acomplaint about a dealer who is not amember of the Code and they will notify theAustralian Competition and ConsumerCommission if it is apparent any laws havebeen broken. The company can be contactedby telephone 1800 145 101, or through thewebsite www.Indigenousartcode.org/index.php/contact.The Code has had limited success becauseit is still a voluntary system which encouragesfair trade in the Indigenous art marketand its success is dependent on art dealerssigning up to the Code and artists andconsumers alike only dealing with signatorieswho are committed to ethical behaviour.Artworks that use flora and faunaSome of the legislation discussed in theHeritage and Cultural Protection section(see Heritage and cultural protection [2.440])such as the Environment Protection and BiodiversityConservation Act 1999 (Cth) [EPBCA]may impede the ability of Aboriginal artiststo create and sell their artworks. In 2013artists from Elcho Island in the NorthernTerritory were refused an export permit foran exhibition of artworks using the plantpandanus because it was listed as a threatenedspecies under the EPBCA. A specialexemption had to be obtained from theMinister so that the exhibition could proceed.Subsequently, panadanus was removed fromthe EPBCA threatened species list. There aremany other art and cultural works whereboth creation and sale are limited by conservationand heritage laws.

2 Aboriginal people and the law 75Cultural protocolsCultural protocols provide another means ofpromoting appropriate dealings with Indigenousintellectual and cultural property.Cultural organisations and government bodieshave developed a number of protocols.Protocols for visual artsThe National Association for the Visual Arts(NAVA) has released an Indigenous visualarts protocol booklet, Valuing Art, RespectingCulture: Protocols for working with the AustralianIndigenous visual arts and craft sector, byDoreen Mellor. See www.visualarts.net.au/media/uploads/files/Valuing_Art_Respecting_Culture.pdf.Film-making protocolsScreen Australia has developed a culturalprotocol for both non-Indigenous and Indigenouspeople working in Indigenousfilmmaking. The protocol provides a frameworkto assist and encourage recognitionand respect for the images, knowledge andstories of Indigenous people. See www.screenaustralia.gov.au/filmmaking/Indigenous_protocols.aspx.Australia Council protocol guidesThe Aboriginal and Torres Strait IslanderArts Board of the Australia Council for theArts has produced a series of five protocolguides on Indigenous cultural and intellectualproperty rights, dealing with literature,music, new media, performing arts, andvisual arts and craft. The booklets outlinecultural protocols to protect Indigenous artisticand cultural intellectual property. Theyare available at www.australiacouncil.gov.au/grants-2012/information-for-applicants/indigenous_protocols.Local government protocolsThe council of the City of Melbourne hasdeveloped an Indigenous art code of practicefor galleries and retailers of Indigenousart. This may provide a template for othercity councils around Australia. The Code isavailable at www.melbourne.vic.gov.au/AboutMelbourne/ArtsandEvents/Indigenousarts/Pages/Codeofpractice.aspx.Other policies and protocolsArtists in the Black, the Indigenous serviceof the Arts Law Centre of Australia (ArtsLaw) has developed an intellectual propertytoolkit primarily for Indigenous art centreswhich contains the following best practicepolicies: photography and filming, festivalsand performances, academic research, andrecording stories.A more complete list of protocols andpolicies is available on the Solid Arts websiteof the Arts Law Centre of Australia atwww.solidarts.com.au/working-ethically/protocols.[2.550] Other developmentsResale royalty rightsA resale royalty is a payment which is madeto an artist when his or her artwork is resoldby the owner. The resale royalty right refersto money paid to the artist following atransfer of ownership in the physicalartwork.Resale rights are based around the ideathat artists should receive a direct benefit astheir work increases in popularity and marketvalue. While popular musicians andwriters benefit from royalty income whenmore copies of their CDs and books areproduced and sold, creators of artworks,which cannot be reproduced, do not benefitin this same way. Therefore, resale royaltypayments enable visual artists (includingpainters, sculptors, printmakers, craftworkers, installation and media artists, andphotographers who produce limited editionprints) to continue to receive income fromthe resale of their artworks.On 9 June 2010 an Australian resaleroyalty scheme for visual artists commenced.The Australian visual artists’ resale royaltyscheme entitles visual artists to receivepayment of a 5% royalty on certain resalesof their works. To participate in the scheme,artists need to register. Artists can registeronline at www.resaleroyalty.org.au.The Australian Government appointedCopyright Agency Ltd to manage thescheme. Information is available on theCopyright Agency’s website www.resaleroyalty.org.au.

76 The Law HandbookDream Shield“Dream Shield” is an initiative of IP Australiato inform Aboriginal and Torres StraitIslanders on how to protect their intellectualproperty. IP Australia is the AustralianGovernment agency that administers intellectualproperty rights and legislation relatingto patents, trade marks, designs andplant breeder’s rights.There is a guide for Aboriginal and TorresStrait Islanders to protecting designs, brandsand inventions available at www.ipaustralia.gov.au/uploaded-files/publications/Dream_Shield.pdf and a website that includesmany examples of success stories andtips for Aboriginal inventors, designers andbusiness owners, in videos and transcriptsat www.ipaustralia.gov.au/understandingintellectual-property/ip-for-business/indigenous-business/dream-shield.[2.560] InternationaldevelopmentsThe World Intellectual PropertyOrganizationIn 2000, the World Intellectual PropertyOrganization (WIPO) established an Inter-Governmental Committee on IntellectualProperty and Genetic Resources, TraditionalKnowledge and Folklore (the IGC). In 2009the member states decided the IGC shouldundertake text-based negotiations regardingeffective protection of genetic resources,traditional knowledge and traditional culturalexpressions. WIPO’s 2014 General Assemblyconsidered next steps in developinga binding international instrument. At thisstage there is still a lot of disagreementamongst the member states about the natureand content of the instrument/s. For furtherinformation about WIPO’s work in this areasee www.wipo.int/tk/en/igc.UNESCOUNESCO has developed the Convention onthe Protection and Promotion of the Diversityof Cultural Expressions. The Conventionincludes principles and articles whichdeal with promoting and protecting Indigenouscultural expressions. For further informationabout UNESCO’s work on the Conventionand cultural diversity go to itswebsite at www.unesco.org/new/en/unesco/themes/2005-convention.Pacific Islands ForumThe Pacific Islands Forum is a politicalgrouping of 16 independent and selfgoverningstates.In 2002, the Pacific Islands Forum adopteda Regional Framework for the Protection ofTraditional Knowledge and Expressions ofCulture which contained a Model Law forthe Protection of Traditional Knowledge andExpressions of Culture (Model Law).The Model Law is a draft documentestablishing a new range of statutory rightsfor traditional owners of traditional knowledgeand expressions of culture and providesa basis for Pacific Island countrieswishing to enact such legislation.In 2009, in order to further the protectionof traditional knowledge, the Pacific IslandsForum launched the Traditional KnowledgeAction Plan: www.forumsec.org.fj/resources/uploads/attachments/documents/Traditional%20Knowledge%20Action%20Plan%202009.pdf.[2.570] Further assistanceThe Arts Law Centre of AustraliaThe Arts Law Centre of Australia providesfree legal services to artists and arts organisationsacross Australia as the nationalcommunity legal centre for the arts.Artists in the Black (AITB) is a legalservice for Indigenous artists, communitiesand arts organisations established by ArtsLaw. The AITB services include:• free telephone legal advice;• document reviews;• workshops/seminars; and• free information packs.Website: www.aitb.com.au.Solid Arts is an online resource aboutprotecting and respecting Indigenous intellectualproperty with free legal tools, practicaladvice and links to other sites for:• Indigenous artists;• art centres and commercial operators;

2 Aboriginal people and the law 77• creators who work with Indigenouscommunities;• people who purchase Indigenous artworks;and• anyone interested in Indigenous issues.Website: www.solidarts.com.au.Other servicesMore extensive services, such as a contractreview service, are available to Arts LawCentre members. The annual membershipfee for an individual is $140; however, thisfee is currently waived for Indigenous artists.Further information and resources, includingIndigenous comics, informationsheets and sample agreements, are availableonline at www.artslaw.com.au or by calling1800 221 457.The Australian Copyright CouncilThe Australian Copyright Council providesinformation, advice and training aboutcopyright in Australia to artists, arts organisationsand people working in educationalinstitutions, libraries, and government departmentsor agencies. It has a free legaladvice service for copyright matters.The Australian Copyright Council has afree information sheet titled IndigenousArtists, and has published two books onlegal issues relevant to Indigenous cultureand intellectual property. They are:• Indigenous Arts and Copyright, which includesgeneral information on copyrightand issues specific to Indigenous people• Protecting Indigenous Intellectual Property,which includes information on importantcommon law developments and internationalresearch and organisations.Further information on these and otherpublications can be found at www.copyright.org.au.

78 The Law Handbook The Law Handbook[2.580] Contact pointsIf you have a hearing or speech impairment and/or you use a TTY, you can ring anynumber through the National Relay Service by phoning 133 677 (local and chargeable calls)or 1800 555 677 (free calls) or 1300 555 727 (Speak and Listen calls). For more information, seewww.relayservice.com.au.Non-English speakers can contact the Translating and Interpreting Service (TIS) on 131 450to use an interpreter over the telephone to ring any number. For more information or to bookan interpreter online see www.tisnational.gov.au.Aboriginal and Torres StraitIslander Social Justicewww.humanrights.gov.au/aboriginal-and-torres-straitislander-social-justiceAboriginal Housing Companywww.ahc.org.auph: 9318 0177Aboriginal Land Council, NSWwww.alc.org.auph: 9689 4444Aboriginal Medical Serviceph: 9319 5823Artists in the Blackwww.aitb.com.auArts Law Centre of Australiawww.artslaw.com.auph: 1800 221 457 or 9356 2566Australasian Legal InformationInstitute (AustLII) (for full text ofWik and Mabo decisions)www.austlii.edu.auAustralian Copyright Councilwww.copyright.org.auph: 8815 9777Australian Institute of Aboriginaland Torres Strait Islander Studieswww.aiatsis.gov.auph: 6246 1111Australians for Native Title andReconciliationwww.antar.org.auCouncil for AboriginalReconciliationwww.austlii.edu.au/carFamily Violence Prevention LegalServicesBourke/Brewarrina ph: 6872 2440Broken Hill ph: (08) 8087 6766 or1800 812 800Forbes: ph: 6850 1234 or 1800 700218Kempsey: ph: 6562 5856Moree ph: 6751 1400Walgett ph: 6828 3143Indigenous Cultural andIntellectual Property Rightswww.austlii.edu.au/au/journals/AILR/1999/51.htmlIndigenous Land Corporationwww.ilc.gov.auph: 1800 818 490Indigenous Law Bulletinwww.austlii.edu.au/au/journals/ILBIndigenous Women’s LegalProgramWomen’s Legal Services NSWwww.womenslegalnsw.asn.auIndigenous Women’s LegalContact Lineph: 1800 639 784 or 8745 6977LawAccess NSWwww.lawaccess.nsw.gov.auLaw and Justice Foundation ofNSWwww.lawfoundation.net.auLink-Up Aboriginal Corporationwww.linkupnsw.org.auph: 1800 624 332 or 4759 1911National Association for theVisual Artswww.visualarts.net.au/advicecentre/servicesindigenousartistsNational Native Title Tribunalwww.nntt.gov.auph: 1800 640 501Ombudsman, NSWAboriginal and Torres Strait IslandersLiaison Officerwww.ombo.nsw.gov.au/atsi.htmlph: 1800 451 524 or 9286 1000Reconciliation Australiawww.reconciliation.org.auph: 6273 9200Solid Arts: respecting andprotecting Indigenous intellectualpropertywww.solidarts.com.au“Stolen Children” homepagewww.hreoc.gov.au/social_justice/bth_report/index.htmlWirringa Baiya AboriginalWomen’s Legal Centreph: 1800 686 587 or 9569 3847Aboriginal legalservicesAboriginal Legal Service(NSW/ACT) Ltdwww.alsnswact.org.auHead Officeph: 8303 6699Care Unitph: 1800 733 233Criminal Unitph: 1800 765 767Central South Eastern ZoneCanberraph: 6249 8488Moruyaph: 4474 2400Nowraph: 4422 3255

2 Aboriginal people and the law 79Redfernph: 8303 6600Wollongongph: 4225 7977Northern ZoneArmidaleph: 6772 5770Coffs Harbourph: 6640 1400Graftonph: 6640 1400Kempseyph: 6562 5990Lismoreph: 6622 7088Moreeph: 6752 5700Newcastleph: 4926 1571Tamworthph: 6761 3766Tareeph: 6551 3928Western ZoneBathurstph: 6331 1255Bourkeph: 6872 2200Broken Hillph: (08) 8087 3233Dubboph: 6882 6966Griffithph: 6962 7675Wagga Waggaph: 6921 9230Walgettph: 6828 2039