Indigenous Peoples and the Law subjects
Indigenous Legal Advocacy Clinic (LAWS90209)
The Indigenous Legal Advocacy Clinic will engage with current law and policy issues impacting Aboriginal and Torres Strait Islander communities. Students will work in small groups in partnership with an Aboriginal legal service or related body on an issue of law or justice identified by the partner organisation. Clinical projects may include legislative submissions, amicus briefs and law and policy analysis. Students will undertake 12 days of clinical work at Melbourne Law School under the supervision of the clinic supervisor and subject coordinator. Students will be taught lawyering skills in persuasive writing, organisational collaboration, and advocacy. The clinical work will be complemented by seminars (held across the semester during the clinic day) on substantive legal topics relevant to the projects, as well as on the historical, cultural and political context of indigenous legal rights. At the end of semester, students will present their completed work to their partner organisation. Guest speakers and site visits (where possible) will be organised to enhance students’ understanding of contemporary legal policy issues impacting Aboriginal and Torres Strait Islander peoples and communities.
Subject Coordinator: Dr Amanda Porter
Programme: Juris Doctor (Semester 1 2021)
Treaty: Indigenous-settler Agreements (LAWS90191)
Treaties are negotiated agreements between nations and peoples. In this subject we address treaty-making as a practice of comparative law and agreement-making between Indigenous nations and settler institutions. We will interrogate the comparative law, policy, theory and history of agreement-making in settler states. The subject aims to equip students with a sound understanding of the historical and contemporary challenges that attend the Indigenous-settler legal relationship, and an understanding of what is required if Indigenous-settler agreements are to be legitimate and robust.
Subject coordinator: Professor Kirsty Gover
Programme: Juris Doctor
Legal Research - Policing (LAWS50039)
This stream explores the idea and praxis of ‘policing’ within settler colonial societies such as Australia. Settler colonialism is a distinct process of invasion, settlement, and nation-building which radically transformed the lives of those original peoples and polities living in the occupied territories. In the British colonies, the policies and practices of extending the colonial frontier, ‘dissemination’ and/or containment within reservations became core roles in the developing colonial state and its institutions, including the police. In this stream we map the historical development of the state police in settler colonial societies, examining such issues as: policing the colonial frontier, policing and policies of protectionism, and policing and liberalism. The core concepts this stream will consider are decolonial/postcolonialism, abolitionism/decarceration, settler colonialism, institutional racism and genocide.
The research stream offers participants the opportunity to reflect upon the nature of law enforcement and the criminal jurisdiction in legally pluralistic nations such as Australia. Research topics might include: policing history, police powers (arrest, stop and searches, strip searches, the use of force), legitimacy, police surveillance, police culture, police complaints, police oversight and accountability mechanisms, fatal shootings, deaths in custody, cold cases, missing and murdered Indigenous women and children, law reform, police abolition and Indigenous nation (re)building. The teaching sessions will address the salience of different legal methodologies and interdisciplinary approaches in debates on these issues, including those drawn from the fields of legal and sociolegal theory, legal anthropology, Indigenous methodologies, critical race studies and critical theory.
Stream teacher: Dr Amanda Porter
Programme: Juris Doctor (Semester 2 2021)
Indigenous Law in Aotearoa and Australia (LAWS90214)
This subject will be taught intensively in Aotearoa-New Zealand in collaboration with our host, the University of Auckland. The subject aims to equip students with expert knowledge on current Indigenous legal issues in Aotearoa and Australia, including contemporary treaty Issues and the influence of Indigenous law in settler legal systems. Comparative perspectives on the ways in which Indigenous law is recognised, taught and practised will be emphasised. Students will be encouraged to think critically about the ways that settler law does and does not recognise Indigenous law and Indigenous law-making authority in these legally pluralistic countries. We will learn from Indigenous scholars and community leaders about strategies for asserting Indigenous law as part of self-governance, and the place of concepts of legal theory, legal traditions, sovereignty and territory in these debates.
Course coordinator: Professor Kirsty Gover
Programme: Juris Doctor (Semester 2, 2021)
Police Powers and the Rule of Law (LAWS50039)
Since the killing of George Floyd by a police officer in Minneapolis, Minnesota this year, there has been global attention on lethal police violence and deaths in police custody. This JD masterclass examines police powers and the rule of law in Australia. Key themes and topics examined include: police powers, police surveillance, stop and searches, arrests, the use of force, police history, police culture and police accountability mechanisms. The course will examine efforts to reform the police as well as proposals to “abolish” the police. I will endeavour to bring to class a panel to reflect a range of diverse perspectives on this topic: police officers, legal practitioners and community activists.
Teacher: Amanda Porter
Programme: JD Masterclass
Law and Indigenous Peoples (LAWS90008)
Not available in 2021
The field of "law and indigenous peoples" is fast developing in Australia and elsewhere as a coherent body of law and theory in its own right, containing its own methodologies and specialities. It is a body of law that is a highly-specialised field of practice and scholarship, but also crosses and contributes to several major generalist areas of law, including property, constitutional law, legal theory, administrative law and international law. Accordingly justifications for indigenous claims have various overlapping bases, depending on the fields in which they are advanced, and include legal entitlements based on common law native title, customary law, special legislative regimes and institutions, equality and non-discrimination law, principles of self-determination and sovereignty, social and economic special measures, and cultural pluralism. In the settler states, indigenous claims and legal systems pose a challenge to standard theories of law and statehood, including some of the fundamental concepts underpinning liberal democratic governance, especially principles of human rights and non-discrimination. These issues underpin several major recent legal controversies in Australia, including the Northern Territory Emergency Response (2008), the Australian endorsement of the UN Declaration on the Rights of Indigenous Peoples (2009), and the proposed referendum on the constitutional recognition of indigenous peoples (2012).
Law and Indigenous Peoples brings together these debates and bodies of law to examine the legal and political status of indigenous peoples in Australia and the influence they have had on the development of Australian law, with reference to the law of other settler states and to international law. Students are encouraged to critically evaluate law and policy impacting on indigenous interests and the strategies used by states and indigenous communities to repair and manage their relationships. Subject materials emphasise case law and secondary materials from Australia, other settler states (particularly Canada, New Zealand and the United States) and the jurisprudence of international and regional human rights bodies.
Programme: Juris Doctor
Encounters: Meeting of Laws in Australia (LAWS50070)
Not available in 2021
Encounter scholarship - the study of contact and contest between Indigenous people and settler colonisers - is an important method and practice in humanities, used to interrogate the limits and possibilities of cross cultural engagements. This subject undertakes this task within the boundaries of law. Using a case study method, the subject centralises the histories and present expression of encounters between Indigenous and Anglo-Australian practices of jurisprudence: the care and conduct of law. We will frame different encounters by examining and analyzing how Australian settler colonial law has dispossessed Indigenous peoples from their land and law over time, in the process constructing for them raced identities, with ongoing, lived consequences. At the same time, we will consider how Indigenous peoples have interpreted and mobilised law – their own, as well as a demand for responsiveness from Anglo Australian domestic law, and international law – to contest those consequences and impacts. The focus in this subject will be predominantly on the encounter between Indigenous Australians and the Australian legal system and nation state over time, and the questions raised about contact, contest and processes of colonisation and resistance will be positioned as transnational phenomena, with comparative analysis where appropriate. The case studies are linked by their consideration of the subject’s overriding themes of Knowledge, Governance, Interests and Recognition. We will study up to three Encounters, which may include: Land Relationships and Title (including the histories of land rights before and after Mabo); Assimilation and Child Removal Policies; Genocide and Law; and The Protection and Prosecution of Knowledges. The course as a whole will argue that close consideration of the historical and present encounter between Indigenous and Anglo-Australian traditions of jurisprudence offers techniques for legal practitioners and scholars to act and reflect on their own responsibilities for legal knowledge and practice; as well as becoming open to the jurisprudential purview of others.
Programme: Juris Doctor
Indigenous Peoples, Land & Resource Law (LAWS70236)
Not available in 2021
This subject focuses on Indigenous peoples’ land and resource rights both in and beyond Australia. Current issues in this dynamic area of law will form the basis of the subject but will include comparative material, particularly but not limited to other common law jurisdictions, consideration of international instruments such as the Declaration on the Rights of Indigenous Peoples, conceptual material on property rights and reforms to indigenous land title in Australia and Canada. Native title law and practice will provide the context of much of the Australian material and will occupy a significant part of the subject. Particular attention will be given to three aspects of the native title process: the operation of the Native Title Act 1993 (Cth), the effect of recent jurisprudence on the enjoyment of native title rights and recent developments in the negotiation and implementation of agreements, whether as native title or non-native title outcomes.
This subject has a strong emphasis on comparative legal regimes for granting and managing indigenous land title and resources. Topics and case studies will be chosen from various jurisdictions.
Programme: Juris Doctor