ILC eNewsletter  #17 December 2016 

Welcome! To the first newsletter of 2017.

2016 was a very busy year for the Indigenous Law Centre achieving many accomplishments, which are detailed below. As we look back on the year that was, we also reflect on staff have that have moved on to new opportunities, the ILB Editor Emma Rafferty was snapped up in July by the Australian Writer’s Guild, we acknowledge Emma’s contribution to the ILB and to the ILC more broadly and wish her well in her new position. New staff have since joined us Laura Hunter to assist us with administration and Ruby Langton-Batty and Lucinda Stewart as trainee editors for the ILB. We look forward to their contributions to the ILC over the coming year. We hope everybody had a Merry Christmas and that the year ahead will be one to remember. We look forward to your ongoing support in 2017.
Indigenous Law Resources database receives major update
The Indigenous Law Resources database – the result of a joint project of the ILC and AustLII, the Australasian Legal Information Institute, received a major update in November 2016.The database, hosted on AustLII’s website, provides free access to significant legal materials relating to Indigenous issues. ‘As Indigenous research and perspectives are still often neglected in mainstream library collections, a priority of the project was to collate and digitise rare, vulnerable and hard to access material,’ says ILC Project Officer Stijn Denayer.
The online database now has more than 1200 fully searchable documents, dating from 1768 to 2016, many of them never before digitally available. The collection includes parliamentary papers, government reports and policy documents affecting Indigenous peoples, as well as reports and submissions by civil society organisations and documents related to significant test cases and legal proceedings. ‘Especially critical to the project are those documents that over the decades capture the aspirations of Aboriginal and Torres Strait Islander peoples,’ says ILC Director, Professor Megan Davis. Documents of Indigenous civil society and representative organisations form the core of the collection. Other significant inclusions are previously undigitised resources relating to discrimination, intellectual property, cultural heritage, land rights and native title.
More information about the project can be found on the ILC website.

Professor Megan Davis to Chair the Aboriginal committee in landmark review.
Minister orders review of every single NSW child removal case in the last 12 months
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: A Voice to the Federal Parliament.

On 15 December, the ILC joined with the Gilbert + Tobin Centre of Public Law to host a workshop on constitutional models of providing Aboriginal and Torres Strait Islander Peoples with a voice to the federal parliament. Professor Megan Davis and Gilbert + Tobin Centre of Public Law director Associate Professor Sean Brennan welcomed constitutional lawyers, Aboriginal leaders and federal parliamentarians to the university to discuss legal and political merits, proposed constitutional drafting and academic comment and criticism of the Referendum Council's proposed recognition option for a constitutionally mandated federal Indigenous voice to the Federal Parliament. Professors Rosalind Dixon and Megan Davis presented their Public Law Review paper on a duty to consult with alternative constitutional drafting. The workshop generated enthusiastic discussion from attending scholars and guests, and was a great way for the ILC to cap off the year. The workshop also included presentations from Shireen Morris of Cape York Institute, Harry Hobbs, and UNSW graduate and ILC researcher Will De Waal. The workshop was funded by a UNSW Goldstar award granted to Professor George Williams and Professor Megan Davis. Special thanks to ILC Administrator Laura Hunter for her efforts in organising such a successful event.
New research grant on Indigenous family violence

ILC Deputy Director Kyllie Cripps with colleagues (including Kylie Valentine, Chris Martin, Daphne Habibis from UNSW and UTAS) were successful in obtaining an AHURI grant over two years to commence in 2017.  The grant is a collection of four Inquiries into integrated housing support for vulnerable families. Kyllie and Daphne’s inquiry will focus specifically on reviewing recent reforms encouraging family violence victims to stay in the home and the efficacy of such an approach in an Indigenous context.
Prof Davis designs deliberative process for Referendum Council 

Prof Davis was appointed by the Prime Minister to the Referendum Council in 2015. Prof Davis has been working on constitutional reform since 2010 when she was appointed to the Prime Minister's Expert Panel on the Recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution.  Alongside the other Indigenous members of the Council, Prof Davis has advocated for and now rolling out a deliberative constitutional process that enables the Aboriginal and Torres Strait Islander community to actively determine what the consider to be "recognition". The methodology designed by Prof Davis and Emeritus Prof Cheryl Saunders from University of Melbourne for the First Nations Regional Dialogues has been modeled on that used successfully by the Constitutional Centenary Foundation over the decade of the 1990s to encourage active debate on constitutional issues in local communities and schools. It has been adapted to suit the needs of Aboriginal and Torres Strait Islander dialogue participants but the characteristics remain the same: impartiality; accessibility of relevant information; open and inclusive dialogue; mutually agreed and owned outcomes. 

The process gives equal weight to the five possible elements of a future referendum proposal. The process was trialled in Melbourne this year and one dialogue has been run in Hobart. ILC Aboriginal scholar and administrative lawyer Gemma McKinnon has been involved. Other UNSW constitutional lawyers involved in the dialogues include Sean Brennan and Gabrielle Appleby. More information on options can be found at:

Our very own ILC intern Lucinda Stewart won the First Peoples Mooting Final on Friday evening the 5th August, at the Supreme Court. Justice Fullerton was full of praise for Lucinda's unflappable temperament.  We would like to take this opportunity to congratulate Lucinda on her achievement.
ILC Staff write for The Conversation
The Conversation is an independent source of news and views, sourced from the academic and research community and delivered direct to the public. It is a platform for both current and topical issues as well as the latest information on research.  ILC staff Professor Megan Davis, Dr Kyllie Cripps and Harry Hobbs have been published in The Conversation this year links to their articles are below:
A Spinney and K Cripps, FactCheck Q&A: are Indigenous women 34-80 times more likely than average to experience violence? The Conversation, July 4, 2016,
K Cripps, Tackling Indigenous family violence needs more than band-aid solutions The Conversation, June 22, 2016, 
K Cripps, Boosting Indigenous only services alone won’t end Aboriginal family violence The Conversation, April 5, 2016, 

M Davis, Listening but not hearing: process has trumped substance in Indigenous affairs, The Conversation, June 22, 2016,

H Hobbs, Will treaties with Indigenous Australians overtake constitutional recognition? The Conversation, December 20, 2016
Australian Indigenous Law Review
2017 will be a big year for the Australian Indigenous Law Review (AILR). Currently the journal is primarily published in print form, supplemented by publication through online databases. In 2017 we will be moving to online publication, keeping the AILR in line with the practice of other leading journals and improving the accessibility and impact of articles we publish.
In the meantime, two volumes of the AILR have been published recently. Volume 19(1) is a special edition on Indigenous Children’s Wellbeing, with guest editor Terri Libesman. It aims to consider the impact of changes in the policy environment, including the ascendance of neoliberal values, on child welfare and juvenile justice. The volume contains contributions by Cindy Blackstock, Anna Haebich, Chris Cunneen, Linda Briskman, Kyllie Cripps and Julian Laurens, Deirdre Howard-Wagner, Melissa Tatum and Terri Libesman.
Volume 19(2) is a general edition. It contains article on justice for young people with FASD (Harry Blagg, Tamara Tulich and Zoe Bush), the link between reciprocal accountability and the legal concept of fiduciary obligations in the context of Indigenous health (Derek Kornelsen, Yvonne Boyer, Josée Lavoie and Judith Dwyer), perceptions of Children’s Court magistrates on the issues facing Indigenous young people (Lorana Bartels, Jane Bolitho and Kelly Richards), Indigenous cross-cultural training for judges and magistrates (Vanessa Cavanagh and Elena Marchetti), commercial native title rights and the Pilki and Birriliburu decisions (Patrick McCabe), the prison experiences of Aboriginal and Torres Strait Islander women (Sjharn Leeson, John Rynne, Catrin Smith and Yolonda Adams) and the role of Indigenous customary law in sentencing (Jack Maxwell). The volume also includes the text of Raelene Webb QC’s 2016 Sir Frank Kitto Lecture, on trends in native title law.
Volumes 19(1) and (2) feature artwork by Jandamarra Cadd.
In 2016 the ILB has published another six editions. These editions have included two special editions on Constitutional Recognition and a Marine edition  that had a specific focus on the relationships between Indigenous peoples and their marine and freshwater environments, and the role of law in mediating these relationships.  We have covered as we do every year the most current and topical issues from the latest High Court Decisions to reflections on where we have come in light of the 25th Anniversary of the Royal Commission into Aboriginal Deaths in Custody, to the most recent edition with a reflection on the Don Dale Inquiry.  A selection of the articles included in the past two editions are included below. 
In 2017 the ILB will remain in print format with four editions planned for the coming year due to financial constraints .  The ILB will transition in 2018 to an online format.

Indigenous Law Bulletin Vol 8 No 26

Indigenous Peoples and Saltwater/Freshwater Governance, Lauren Butterly and Benjamin J. Richardson

Deconstructing Aqua Nullius: Reclaiming Aboriginal Water Rights and Communal Identity in Australia, Virginia Marshall

Indigenous-Driven Co-Governance of Sea Country Through Collaborative Planning and Indigenous Protected Areas, Dermot Smyth, Jackie Gould, Margaret Ayre, Ellie Bock, Melanie Dulfer-Hyams and Tanya Vernes

Victoria’s Traditional Owner Settlement Act and Indigenous Management of Water Resources: An Improvement on the Native Title Act or more of the same? Katie O’Bryan

Legal Indigenous Recognition Devices, Jacinta Ruru

Indigenous Law Bulletin Vol 8 No 25

Inside the Kenbi Land Claim Negotiations: Watersheds and Waterlogs, Kirsty Howey

Substantive Recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution, Matthew Stubbs

Is Federalism being undermined in the current surge to 'Recognise' Indigenous Australians in (and into) the Commonwealth Constitution? Mark McMillan

BOOK REVIEW: Keeping Their Marbles: How the Treasures of the Past Ended Up in Museums—And Why They Should Stay There by Tiffany Jenkins
Reviewed by Kathy Bowrey

BOOK REVIEW: Specialist Courts for Sentencing Aboriginal Offenders: Aboriginal Courts in Australia by Paul Bennett Reviewed by Julian Murphy

Retrospective Article: Aboriginal Women in Custody: A Footnote to the Royal Commission, Adrian Howe

Canada pushes forward with UNDRIP: Extract from BILL C-262
ILC Staff in the Media

This year ILC staff have again been busy both writing articles for leading media outlets and also participating in media interviews.  A selection of our staff’s engagement with the media is included below:

Megan Davis:
Kyllie Cripps:
  Harry Hobbs:
ILC Staff Achievements 2016

M Davis, Australia’s 100 Women of Influence by the Australian Financial Review and Westpac. 

M Davis, appointed Chair of NSW Review into Aboriginal out of home care. 

M Davis, United Nations Association Queensland Community award for dedication and contribution to the Queensland community reflecting the United Nations principles.

M Davis and M Langton, It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform, (2016) MUP, Melbourne.
Refereed Journals
K Cripps and J Laurens. The protection of cultural identity in Aboriginal and Torres Strait Islander children exiting from Statutory Out of Home Care via Permanent Care Orders: Further observations on the risk of cultural disconnection to inform a policy and legislative reform framework. Australian Indigenous Law Review, 19(1), p 70-87.
M Davis and R Dixon, ‘Constitutional Recognition through a (Justiciable) duty to consult? Towards entrenched and Judicially enforceable norms of Indigenous consultation’ (2016) 27 Public Law Review 255-263.
M Davis, ‘Australia’s Reconciliation Process in its International Context: Recognition and the Health and Wellbeing of Australia's Aboriginal and Torres Strait Islander People’ (2016) Australian Indigenous Law Review 56-66.
M Davis, ‘Seeking a settlement’ (2016) The Monthly 8-11.
M Davis, ‘Listening but not hearing: When process trumps substance’ (2016) 51 Griffith Review 73-87.
M Davis, ‘Gesture Politics’ (2016) The Monthly 8-12.
Book Chapters
M Davis, ‘Intersectionality’ in G Appleby and R Dixon, Constitutional Critical Thinking: Re-reading Monis v The Queen (with Rosalind Dixon, eds) (Federation Press, 2016).
M Davis, ‘Political Timetables Trump Workable Timetables’: Indigenous Constitutional Recognition And The Temptation Of Symbolism Over Substance’ in S Young, J Nielsen & J Patrick (ed) Constitutional Recognition of Australia’s First Peoples: Theories and Comparative Perspectives (Federation Press, 2016).
M Davis, ‘Putting Meat on the Bones of the United Nations Declaration on the Rights of Indigenous Peoples’ in (ed) Indigenous Australians, Social Justice and Legal Reform (Federation Press, 2016).
M Davis, ‘Data sovereignty and the United Nations Declaration on the Rights of Indigenous Peoples’ in T Kukutai and J Taylor, Indigenous Data Sovereignty (ANU Press, 2016).
M Davis, ‘Ships that pass in the night’, It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform, (2016) MUP, Melbourne, 152-177.
M Davis and M Langton, ‘Introduction’ in M Davis and M Langton, It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform, (2016) MUP, Melbourne, 15-57.
T Libesman and K Cripps. Chapter 14: Aboriginal and Torres Strait Islander children’s welfare and well-being, in Young, L, Kenny, M A & Monahan, G Children and the Law in Australia (2nd Edition). LexisNexis, 2016.
L Terrill, 'Neoliberal rhetoric and guardian state outcomes in Aboriginal land reform' in Will Sanders (ed), Engaging Indigenous Economy: Debating Diverse Approaches (CAEPR Research Monograph No. 35, ANU Press, 2016).
Presentations and conferences
M Davis, ‘Public law solutions addressing disadvantage: globally and nationally’, Dame Roma Mitchell Oration, Melbourne, 11 March 2016.
M Davis, ‘Constitutional reform and improving Indigenous health’, Opening Keynote Address, Lowitja Institute International Indigenous Health and Wellbeing Conference, Melbourne (November 8 2016).
M Davis, ‘Making The United Nations Fit for Purpose in The 21st Century’, Australia’s Foreign Policy at the United Nations, United Nations Association of Australia, Customs House, Sydney  (July 22 2016).
M Davis, ‘International law and genocide’, Without Unnecessary Violence, 150th anniversary of the gazettal of Regulations to “disperse” any “large assembly of blacks without unnecessary violence”, Premier’s Hall of Parliament House (August 29 2016) Brisbane.
M Davis, Real Recognition (with Prof Marcia Langton), The Wheeler Centre, Melbourne (7 June 2016).
M Davis, ‘Indigenous women and political participation’, Indigenous women and human rights, Canada and the Australian Mission to the United Nations (6 May 2016).
M Davis, Constitutional recognition, National Native Title Conference Friday, Darwin Convention Centre (3 June 2016). 
M Davis, ‘Reconciliation: Where to From Here?’, National Reconciliation Week talk, BP Australia, Melbourne (3 June 2016).
M Davis, ‘Strengthening interaction with other indigenous specific mandates’ Expert Workshop to review the mandate of the Expert Mechanism on the Rights of Indigenous Peoples, Palais des Nations, Geneva (4 and 5 April 2016).
M Davis, “UNDRIP and Indigenous peoples in the Pacific’, Regional Workshop on enhancing inclusive development in the Pacific in the framework of the United Nations Declaration on the Rights of Indigenous Peoples (20-23 June 2016) Apia, Samoa.
L Terrill, 'Land Reform and Economic Development on Indigenous Land', National Law Reform Conference, Australian National University, 15 April 2016.
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Indigenous Law Centre, UNSW · Indigenous Law Centre, Faculty of Law · University of New South Wales · Sydney, Nsw 2052 · Australia

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