In October 2021 the Australian Bar Review published a special edition in honour of the journal’s 50th volume. The special edition focuses on First Nations voices and issues, and reflects on the developments and failures of the Australian legal system, to acknowledge and reform Indigenous issues over the past fifty years.

In the Foreword, Chief Justice Allsop notes that despite years of investment, reports, and enquiries into the injustice faced by First Nations peoples, a transformation is still needed to ensure real justice for First Nations people, and to create an Australian society that represents a just reality of Reconciliation. His Honour suggests that non-Indigenous Australians need to develop a whole appreciation and conceptualisation of the past, the present and the future from the perspective of First Nations peoples, in an acknowledgement that such an understanding informs both legal principles and practical approaches to the human and social reality in which we are situated.

The volume contains seven papers which explore the varied and complex legacies of systemic discrimination and violent impositions of power over First Nations people within the Australian legal system.

In a paper entitled Indigenous over-incarceration and individualised justice in the light of Bugmy v The Queen, Guy C Charlton comments on the High Court’s analysis of Indigenous sentencing in Bugmy v The Queen, arguing that it was a lost opportunity to address the problems of Aboriginal over-incarceration and the failures of current sentencing regimes to address the needs of Aboriginal offenders.

The next paper arises out of the fact that seventy per cent of burial disputes filed in Australian courts are brought by Aboriginal Australians. Louise Goodchild and Lucy- Ann Kelley consider the unique cultural and spiritual beliefs and practices surrounding the disposal of a body and provide a guide to Aboriginal burial dispute hearings in New South Wales, examining the nature of burial rights and evaluating the increasing willingness of Australian courts to take a flexible and culturally appropriate approach.

Paul Gray discusses the landmark Bringing them Home report but notes that the over-representation of First Nations children removed from their families has only worsened since the report’s publication in 1997. Gray advocates for a ‘re-imagination’ of the system of child protection, not merely a ‘tinker[ing]’ with the façade. Without transformational change, Gray argues, the policies and children will continue to pervade child protection systems and the outcomes for First Nations children are unlikely to improve.

Peter Kilduff and Asmi Wood consider Australia’s determination of sovereignty following the rejection of the European doctrine of discovery. The authors argue that a claim of sovereignty not adverse to the Crown, despite never having been pursued in Australian courts, is arguable and contestable as a justiciable issue. The authors consider the relevant case law and suggest amendments to the Australian Constitution that would recognise and protects Indigenous peoples’ rights and title to land.

2021 marked 30 years since the handing down of the final report of the Royal Commission into Aboriginal Deaths in Custody. Irene Lawson considers the operation of the County Koori Court in Victoria, created to implement the inaugural Victorian Aboriginal Justice Agreement that emerged from the Commission’s report. Koori courts aim to increase Koori engagement with, participation in, and ownership of, the law.

Helen Milroy, Marshall Watson, Shradda Kashyap and Pat Dudgeon discuss the historical and contemporary contexts which contribute to the over-representation of young First Nations people in the justice system as both victims and offenders. The authors argue that the offending behaviours ‘lie at the end of a continuum of risk’ that includes exposure to intergenerational and current trauma, generational poverty, social disadvantage and discrimination. Their article recommends measures for prevention and healing from a First Nations perspective and proposes comprehensive models of care to assist with an understanding of the many factors that impact the development, social and emotional wellbeing, health and mental health of First Nations peoples, families and communities.

Finally, Prue Vines explores the civil law inheritance needs of First Nations peoples, and the belated incorporation of ‘customary law’ into the New South Wales Succession Act 2006, in 2009. Vines argues that there is a clear need to bring Indigenous customary law into the common law space, despite concerns that this approach continues to be a form of a ‘colonisation’ of Indigenous communities.

Reviewed by Dominic Villa SC