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The Law Handbook YOUR PRACTICAL GUIDE to the LAW in NEW SOUTH WALES

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The Law Handbook YOUR PRACTICAL GUIDE to the LAW in NEW SOUTH WALES The Law Handbook YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES 15th EDITION REDFERN LEGAL CENTRE PUBLISHING 01_Title_piii-iii.indd 3 28-Nov-19 08:08:13 Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont NSW 2009 First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978. First published as The Law Handbook in 1983 Second edition 1986 Third edition 1988 Fourth edition 1991 Fifth edition 1995 Sixth edition 1997 Seventh edition 1999 Eighth edition 2002 Ninth edition 2004 Tenth edition 2007 Eleventh edition 2009 Twelfth edition 2012 Thirteenth edition 2014 Fourteenth edition 2016 Fifteenth edition 2019 Note to readers: While every effort has been made to ensure the information in this book is as up to date and as accurate as possible, the law is complex and constantly changing and readers are advised to seek expert advice when faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used as a substitute for legal advice. ISBN: 9780455243689 © 2020 Thomson Reuters (Professional) Australia Limited asserts copyright in the compilation of the work and the authors assert copyright in their individual chapters. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright 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 prior written permission. Inquiries should be addressed to the publishers. This edition is up to date as of 1 October 2019. 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 3744 SA: Law Handbook by the Legal Services Commission of South Australia, ph: (08) 8111 5555 Qld: The Queensland Law Handbook by Caxton Legal Centre, ph: (07) 3214 6333 Tas: Tasmanian Law Handbook by Hobart Community Legal Service, ph: (03) 6223 2500 NT: The Northern Territory Law Handbook by Northern Territory Legal Aid Commission, Australasian Legal Information Institute and Darwin Community Legal Services, ph: (08) 8982 1111 Editor: Newgen Digitalworks Product Developer: Karen Knowles Printed by: Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. 02_Copy_right_piv-iv.indd 4 28-Nov-19 07:39:54 2 Aboriginal People and the Law Robyn Ayres – Arts Law Centre of Australia Patricia Lane – Barrister; Senior Lecturer, University of Sydney Susan Burton Phillips – Barrister Shannon Williams – Women’s Legal Service NSW [2.10] Historical legacy ........................................ 40 [2.240] Aboriginal and Torres Strait Islander [2.30] The application of British and women and the law.................................... 52 Australian law ............................................. 40 [2.280] Land law .................................................... 54 [2.70] Some current points of conflict ................... 44 [2.290] Aboriginal land ownership in NSW ............. 54 [2.140] Aboriginal people and criminal law ......... 46 [2.310] The Aboriginal Land Rights Act ................... 55 [2.140] Dealing with the police .............................. 46 [2.350] Native title.................................................. 57 [2.180] Legal assistance .......................................... 49 [2.390] Resource law .............................................. 65 [2.200] Trial and sentencing ................................... 49 [2.440] Cultural heritage protection .................... 66 [2.230] Children, women and family law ............. 51 [2.440] Protection of heritage ................................. 66 [2.230] Protecting Aboriginal and Torres [2.480] Copyright and other protections ................ 68 Strait Islander children ................................ 51 1234567891234_Book.indb 39 11-Dec-19 12:50:30 40 The Law Handbook HISTORICAL LEGACY [2.10] To understand the relationship between Islander Australians would have to seek a ruling Aboriginal and Torres Strait Islander people in international law on the legality of the way in and the Australian legal system, it is essential which the British government gained sovereignty to appreciate something of the history of that over Australia. The international courts are relationship. not, however, designed for what amounts to secessionist action by Aboriginal and Torres Strait Which law? Islander peoples or others seeking to roll back colonialism. They may only hear matters between There are two legal systems for many Aboriginal and “nation states”, and no Aboriginal and Torres Torres Strait Islander people. Strait Islander group in Australia has that status. The most obvious is the Australian legal system to Aboriginal and Torres Strait Islander people which all Australians are subject (with some differences are left to seek remedies for their dispossession between states and territories). The other body of law that applies to Aboriginal and Torres Strait Islander under the domestic laws of Australia and through people is their own systems of customary law, beyond political actions. the laws enacted by parliament or developed by the courts. It is only since the High Court’s Mabo decision in 1992 (Mabo v Queensland (No 2) (1992) 175 CLR 1) Recourse to the United Nations that the Australian legal system has recognised that Where there has been a breach of an international Indigenous laws survived invasion by the British treaty or convention, Aboriginal and Torres Strait and continue to the present time. So far this legal Islander people may be able to bring an individual recognition has been applied to the ownership of or group application before the United Nations land and waters and use of certain resources, but it Human Rights Committee; for example in 2007 in is also extending to other areas such as intellectual an application brought to the Committee in relation property rights and has greater and greater currency to the Commonwealth Government’s Emergency in the cultural domain, including with respect to the Intervention in the Northern Territory and earlier in protection of Indigenous cultural heritage. 1998, regarding the effect of the amendment to the Native Title Act 1993 (Cth) (The Ten Point Plan). Under the International Covenant on Civil and Political Rights, which Australia has signed, the [2.20] The issue of sovereignty Committee can hear complaints from Australian Aboriginal and Torres Strait Islander people in citizens where the: Australia never ceded sovereignty of the lands • violation occurred on or after 25 December comprising the Australian continent to the British 1991; and Crown – that is, not one of the 600 or more • complainant has exhausted all available domestic clan groups (defined by dialect) ever gave up remedies. sovereignty over their traditional lands. Aboriginal and Torres Strait Islander people The Uluru Statement from the Heart on 26 May 2017 argue that the Crown’s claim to sovereignty is not made by the National Constitutional Convention sustainable under international law. However, held by 250 Aboriginal and Torres Strait Islander in Coe v Commonwealth (1979) 53 ALJR 403, the leaders and delegate is a critical re- set for the High Court said that Australian courts were national conversation about constitutional not capable of deciding the issue of sovereignty, recognition of Australia’s Aboriginal and Torres which meant that Aboriginal and Torres Strait Strait Islander peoples. The application of British and Australian law [2.30] Since colonisation, the laws of England Australians. In theory, this meant that Aboriginal were considered to apply in the Australian and Torres Strait Islander people were entitled to colonies to Aboriginal and Torres Strait Islander the same protection under the coloniser’s legal 1234567891234_Book.indb 40 11-Dec-19 12:50:30 2 Aboriginal People and the Law 41 system as any British subject, and Governor remain diminished unless and until there is Phillip’s letters patent (official instructions) told an acknowledgment and retreat from those him to “conciliate the affections of the natives and past injustices. In the circumstances, the Court to live with them in amity and kindness”. is under a clear duty to re-examine the two In practice, there was state-sanctioned physical propositions. For the reasons which we have and cultural violence. The history of NSW is full explained, that re-examination compels their of examples of this, from massacres that went rejection. The lands of this continent were unpunished to state seizure of places and items of not terra nullius or “practically unoccupied” Aboriginal cultural heritage. in 1788. [2.40] “Terra nullius” and [2.50] The Aborigines Aboriginal dispossession Protection Board Colonial law was used to sanction the removal By the early 1880s, most Aboriginal people in NSW of Aboriginal people from their lands. This was had been forced to move from their traditional reinforced by the application of the doctrine of lands to camps on missions or reserves. People terra nullius (meaning land empty of law) which were rounded up like cattle and marched to the allowed the colonial administration and successive camps or were forced
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