14 Judicial Practice

14.1 Introduction

There’s three things we must do — be more informed, be able to make more considered decisions, giving us greater nuance to sentencing, and to expand our level of communication and understanding — this must be seen as professional practice, and it brings more meaning to the court process — every opportunity is one to bring meaning to this moment…

Every opportunity [in the justice system] is a hope for change…1

— First Nations Judge David Woodroffe

This chapter considers the experiences, and interests, of Aboriginal and Torres Strait Islander participants in courts. It does so by considering, first, how judicial officers can prepare themselves in cases involving Aboriginal and Torres Strait Islander participants and, second, how judicial officers can prepare the court.

Why is this necessary? Indigenous peoples’ sense of alienation and disenfranchisement before the courts is well documented. Yet, despite this, the courts can be a critical place for First Nations peoples to create positive change or to assert their rights.

14.2 Preparing the Judge

A recurrent theme, both in the consultations undertaken for this Bench Book and within the literature, is the importance of improving judicial understandings of Aboriginal and Torres Strait Islander culture and knowledges — understandings that can both reduce the risk of bias and improve justice outcomes. Tom Bathurst, former Chief Justice of New South Wales, reflecting on continued high Indigenous incarceration rate, characterised the justice system as a ‘tool of injustice because there is a lack of appreciation of Indigenous customs’.2 Greater awareness and appreciation of First Nations worldviews and knowledges has been shown to assist in addressing a common concern of First Nations peoples: bias.

14.2.1 Bias

A common and frequent concern of First Nations peoples in relation to the court system is the existence of bias. The Law Council of Australia identifies three types of bias that Aboriginal and Torres Strait Islander peoples experience within the justice sector: structural bias, individual implicit bias, and individual explicit bias.

Structural bias exists at a societal level, and Aboriginal and Torres Strait Islander peoples’ ‘profound and ongoing distrust in the legal and justice system cannot be divorced from a history of perceptions that laws and policies work “against them” instead of “for them”’.3 Such biases are illustrated by the fact that Aboriginal and Torres Strait Islander peoples ‘continue to experience vastly disproportionate rates of incarceration, high numbers of deaths in custody, instances of police discrimination and mistreatment, imposition of income management, and high rates of child removals’.4

Factors contributing to structural bias include:

  • ongoing impacts of colonisation and intergenerational trauma;

  • ongoing discrimination against Aboriginal and Torres Strait Islander peoples;

  • general systemic barriers to wellbeing and productivity that impede:

    • life expectancy and physical and mental health;

    • access to education and literacy and numeracy skills;

    • access to housing and employment; and

    • capacity to accrue generational and intergenerational wealth; and

  • government, legal and related policy settings which disproportionately negatively impact Aboriginal and Torres Strait Islander peoples within the legal sector.

Bias can also be reflected at an institutional level (see 10.1 Introduction). At 14.3 Preparing the Court we discuss how judicial officers and courts can address examples of institutional bias.

Finally, bias can exist at an individual level. Explicit bias is readily apparent; however, bias can also be implicit, meaning that a judicial officer or legal practitioner will not be aware that they hold such biases. For example, they may hold an unconscious stereotyped view of what makes a ‘good parent’ that is, in fact, a reflection of their own socialisation. The right to a fair trial and fair hearing rights5 require, at all stages of the trial process, that judicial officers be able to identify stereotypes and false assumptions regarding racial and cultural issues.

Yet the experiences of Aboriginal and Torres Strait Islander peoples are that they ‘regularly encounter bias in court and that bias is greatest when judges are afforded generous discretionary powers or have poor cultural awareness’.6

Professor Chris Cunneen has referred to a ‘widespread and long-held view’ that judicial racism is a real problem, citing remarks by judicial officers in the past.7 A recent example was the reference by a Northern Territory judge to an Aboriginal man as being ‘[j]ust like a primitive person’.8 The same judge had been responsible for the following remarks made to a First Nations party:

‘Yesterday probably was pension day, so you got your money from the Government, abandoned your kids in that great Indigenous fashion of abrogating your parental responsibility to another member of your family, and went off and got drunk,’ the judge told her.

Got the money from the Government, straight down, buy grog, pour it down your throat.9

Research also demonstrates that ‘it is likely that social biases play a role in judicial decision-making’, including impacts based on the race of a litigant.10 Indeed, studies demonstrate that judges (and presumably legal practitioners) who are socialised within the larger Australian polity are ‘impacted by the same cognitive biases as other people’.11 This would include the widely held negative views, and common stereotypes, of Aboriginal and Torres Strait Islander peoples. For example, an Australian application of the Implicit Association Test which examined 11,000 people over a 10-year period found that around 75% of Australians hold an implicit bias against Aboriginal and Torres Strait Islander peoples, with one-third holding a strong implicit bias that does not alter based on social setting or position.12 See 10.1 Introduction and 10.9.4.4 Expert Evidence.

The following areas are identified in the research as areas of judicial decision-making where ‘errors due to cognitive or social biases are likely to arise’:

  • credibility assessments;

  • evaluation of evidence;

  • exercises of discretion;

  • exposure to inadmissible material; and

  • assessments of a judge’s own bias or appearance of bias.13

14.2.2 Increasing Awareness of First Nations Worldviews, Cultures and Peoples

Research suggests that strategies that can address bias in judicial decision-making include:

  • training (including cultural competency training);14

  • humanising litigants (e.g. spending additional time speaking with them during proceedings);15

  • increasing contact with ‘counter stereotypic examples’ including through fostering diversity in judges’ private lives;16

  • altering courtroom practices (including design and decoration of courts);17 and

  • reducing discretionary decision-making.18

One readily available step judges can take is to increase their exposure to, and awareness of, First Nations cultures, knowledges and strengths. Cavanagh and Marchetti observe that

while the majority of Australians have strong opinions regarding Indigenous Australians, far fewer of them have had any meaningful engagement with Indigenous Australians, leaving their opinions open to the risk of being based on stereotypes and dominant (negative) discourse, rather than lived experiences and sound education.19

At an individual level, then, judges can seek to educate themselves about the lived experience of First Nations peoples in Australia, in their own words. See for example:

14.2.3 Judicial Cross-Cultural Awareness Training

Kado Muir, a Tjrarru Ngalia man and Indigenous activist, has noted that ‘legal institutions do not understand Indigenous society … [they do] not understand their relationship with the land, their belief systems, their history’.20 One way of addressing bias within the legal system is to increase cross-cultural awareness among judicial officers.

Judicial education is receiving increased attention nationally. The Australasian Institute of Judicial Administration recently commissioned research into the features, limits and futures of judicial education.21 In 2006 the National Judicial College of Australia (‘NJCA’) published a National Standard for Professional Development for Australian Judicial Officers, described as a living and adaptable benchmark for judicial knowledge and skills. It is based on consultation with judicial officers and what the NJCA has described as the baseline for ‘judicial excellence’.22 (The NJCA also designs and delivers judicial education events.23)

Some of the benchmarks the NJCA sets out are relevant for this Bench Book, and include:

  • applying fair process and upholding law, rights and access to justice;

  • treating people with respect, honesty and dignity;

  • knowing about the correct use of tools available to support judicial decision-making;

  • recognising the limits in their knowledge and knowing how to overcome them;

  • reflecting to identify risks to impartiality, including conscious and unconscious biases; and

  • being aware of social and cultural norms, and using language understandable by all present.24

Recommendation 96 of the Royal Commission into Aboriginal Deaths in Custody states:

That judicial officers and persons who work in the court service and in the probation and parole services whose duties bring them into contact with Aboriginal people be encouraged to participate in an appropriate training and development program, designed to explain contemporary Aboriginal society, customs and traditions. Such programs should emphasise the historical and social factors which contribute to the disadvantaged position of many Aboriginal people today and to the nature of relations between Aboriginal and non-Aboriginal communities today. The Commission further recommends that such persons should wherever possible participate in discussion with members of the Aboriginal community in an informal way in order to improve cross-cultural understanding.25

Cavanagh and Marchetti have considered the goals of cross-cultural training for judicial officers:

  • In order to provide a culturally safe service, judicial officers must engage in self-reflection and be ‘actively acknowledging the dominance of their own culture (if they belong to the dominant culture) and/or the dominance of the institution that they represent, and understanding how white privilege and power manifests in day-to-day cross-cultural interactions’.26

  • Cross-cultural training is ‘not simply learning about the difference of others (for example, gaining an understanding of language, custom and etiquette), but also challenging embedded prejudice’.27 Simply ‘gaining a better understanding of another culture does not mitigate and dismantle the embedded racial superiority that is at the root of any prejudice’.28

  • ‘[W]ith any portrayal of Indigenous peoples as underprivileged and disadvantaged, training must also investigate the white privilege and advantage that is upholding the status quo’.29

  • Judicial engagement in ongoing cross-cultural training programs should be encouraged.

The work of judicial officers is difficult and demanding. This Bench Book appreciates, and does its best to support, the work of judges in making fair rulings to a high standard on both fact and law. Numerous other resources can also support this work. We point readers to these resources by other Australian judicial education organisations:

14.3 Preparing the Court

Aboriginal and Torres Strait Islander peoples, and the Australian public as a whole, expect a court to engage with them fairly. Courts also want their processes and outcomes to be fair. Precisely how courts can improve existing processes and fair outcomes is a point of contention. It can be useful for courts to have resources at their disposal to understand just how fairness and justice can be improved for Aboriginal and Torres Strait Islander peoples.

14.3.1 Courtcraft

Judicial officers have some latitude in how they run their courts. This has been referred to as ‘courtcraft’. The Judicial College of Victoria defines courtcraft as ‘the method by which judicial officers manage and maintain their courtroom’.30

The Federal Court is required, in its civil practice and procedure, to manage the ‘just’ resolution of disputes, ‘according to law’ and ‘as quickly, inexpensively and efficiently as possible’.31 This will be obvious to many stakeholders reading this Bench Book, but it provides a useful thematic framework for thinking about the Court’s approach to Indigenous parties. Sometimes, ‘just’, ‘quick’, ‘inexpensive’ and ‘efficient’ may require the Court to think carefully and laterally to improve fair procedure and outcomes for First Nations peoples.

‘Quick’, for instance, might consider that Aboriginal and Torres Strait Islander peoples have an interest in ensuring that Elders are alive as applicants to see the resolution of cases or even to be present as crucial evidence-givers. Courts might also think of this as a ‘just’ outcome.

June Oscar, in her role as Social Justice Commissioner, said in her 2017 Mabo Oration:

It is sad for me to reflect on the efforts of so many of our old people who have made their cases over years and even decades but have never lived to see the settlement of their claims. … These processes become so disengaged with us as people and human beings and what we stand for and what we fight for. Many of us are managing all of these feelings and responsibilities to Country alongside these complexities. So when we sit in native title meetings, sometimes it is hard for us to speak and the words don’t come because we are remembering people who were a part of the conversation when it first started.32

At the same time, the interest in expediency might also need to be balanced with the need to move slowly and carefully. Some Indigenous litigants or applicants, as under-resourced communities, can move more slowly in complex litigation than well-resourced state or industry parties. In some jurisdictions, their responsibilities are often complex and novel, requiring more time and flexibility.33 Moreover, First Nations parties and witnesses may require more space and time in giving evidence or engaging with the court.

Courts might adopt a general spirit of reasonable flexibility in court procedure ‘without contradicting the [relevant] legislative scheme itself’, as noted by Mortimer CJ recently in Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Western Australia:

[T]he burdens imposed on First Nations peoples as moving parties in NTA [Native Title Act] proceedings, in terms of simply being able to commence a proceeding, are much higher under this legislative regime than in other commensurate practice areas of this Court.

It need not be the case, and it would be ironic and inequitable if the Parliament had erected so many barriers to the commencement of a proceeding that the very parts of the Australian community whose interests, historical disadvantages and mistreatment this legislation is designed to redress cannot access the legislative regime at all. That would be a situation inimical to the Preamble to the NTA.

Of course this Court might do what it can, within the powers available to it, to ameliorate some of the technicalities and obstacles by adopting an approach that places emphasis on substantial compliance.34

In this case, the Court granted a novel application that Karajarri Elders’ evidence could be recorded, preserved and used in a future native title compensation claim, before the claim had been lodged. These hearings were then conducted on Country over several sittings. When reflecting on the impact this had, Karajarri and Yawuru knowledge and law holder Joe Edgar told the ABC:

We’ll be forever grateful, and now it’s been documented and not just stories we sit around the family table or campfire to tell … To have that opportunity was a huge new thing for us.35

In the native title jurisdiction, the Federal Court is guided by Practice Note NT-1 which allows for ‘tailored case management processes … to the extent necessitated by the character of the matter or the needs of the parties’.36 (See [4.5]–[4.6] and, for native title generally, 4 Native Title).

For considerations around courtcraft in criminal matters, including and especially care for witnesses or complainants, obtaining good evidence without re-traumatisation, and eliciting full contexts, see:

14.3.2 Streamlining and Simplifying Forms, Orders and Judgments

For many people, courtrooms can be viewed as alien and confronting places. Courtroom language and procedures are part of a culture that many do not encounter in their day-to-day lives. The difficulty of engaging in legal proceedings is exacerbated for those who have limited formal education, come from culturally and linguistically diverse backgrounds, or live with disability. For those Aboriginal and Torres Strait Islander people whose lives are affected by one or more of these factors, their participation in legal proceedings can be profoundly impacted.

Some barriers that prevent Aboriginal and Torres Strait Islander peoples from participating fully in legal proceedings include the following:

  • Aboriginal and Torres Strait Islander peoples experience alienation from and distrust of the legal system stemming from a long history of colonisation, intergenerational trauma and discrimination towards Aboriginal and Torres Strait Islander peoples within the legal system.

  • There is an ongoing lack of cultural competence and understandings of the cultural needs and values of Aboriginal and Torres Strait Islander peoples within the legal system, including the failure of the legal system to accommodate communication and language differences.

  • Some Aboriginal and Torres Strait Islander peoples have limited awareness of the law, and lack knowledge of their rights or redress.

  • Economic barriers, including higher poverty and unemployment rates in Aboriginal and Torres Strait Islander communities, lead to a decreased likelihood of affording legal representation.

  • There are structural barriers and lack of accessibility exist for Aboriginal and Torres Strait Islander people with disability.

  • There are structural barriers to Aboriginal and Torres Strait Islander peoples’ representation on juries.37

These matters contribute to Aboriginal and Torres Strait Islander peoples’ negative perceptions of courts, which can include the view that courts:

  • are foreign, insensitive and hostile places;

  • privilege Western cultural concepts and expectations; and

  • are often a tool of oppression rather than offering opportunities for redress or conflict resolution.

Despite this, courts play a vital role in offering all people the opportunity for redress, conflict resolution, and recognition of their rights and entitlements. Improving Aboriginal and Torres Strait Islander participation in legal proceedings is crucial to ensuring that courts are adequately carrying out their functions.

14.3.3 Meaningful Engagement between Judicial Officers and Aboriginal and Torres Strait Islander Communities

Meaningful engagement with Aboriginal and Torres Strait Islander peoples is vital to ensuring First Nations peoples right to participation and self-determination.

Recommendation 96 of the Royal Commission into Aboriginal Deaths in Custody relevantly states

judicial officers and persons who work in the court service and in the probation and parole service and whose duties bring them into contact with Aboriginal people [should] participate in discussion with members of the Aboriginal community in an informal way in order to improve cross-cultural understanding.38

Stakeholders consulted by the Judicial Council on Cultural Diversity said that ‘building strong relationships between judicial officers and Aboriginal and Torres Strait Islander communities is a practical and effective form of training and development for judicial officers’.39

Some features of building meaningful relationships may include:

  • taking the time to build relationships with Aboriginal and Torres Strait Islander communities in a slow and deliberate manner;

  • building relationships on the ground to acquire an understanding of local issues, community history, culture and language; and

  • establishing effective processes in partnership with Aboriginal and Torres Strait Islander communities and facilitating learning for Indigenous peoples involved, or ‘two-way learning’.40

Ways in which judicial officers may meaningfully engage with Aboriginal and Torres Strait Islander communities include:

  • reaching out to Indigenous communities, meeting local leaders and demonstrating respect for communities and their priorities;

  • holding or participating in events commemorating the anniversary of the National Apology to the Stolen Generations, National Sorry Day (or National Day of Healing), National Reconciliation Week, NAIDOC Week and Ochre Ribbon Week;

  • holding court visiting programs and court open days to make the court more accessible to Aboriginal and Torres Strait Islander peoples; and

  • where available, engaging First Nations parties with culturally appropriate supports (e.g. connecting parties with Indigenous Family Liaison Officers if interacting with the Federal Circuit and Family Court of Australia.

Addressing cultural and linguistic issues in the courtroom is of fundamental importance to Aboriginal and Torres Strait Islander participation in court. Such issues go to the heart of procedural fairness, the notion that people must be offered a reasonable opportunity to be heard and to present their case.

Dr Diana Eades observes that ‘[c]ultural and linguistic issues are central to any consideration of the law’s engagement with First Nations people. Culture comprises ways of thinking, believing and acting, that includes shared knowledge, shared language/dialect and shared norms, assumptions and expectations’.41 She further observes, with respect to Aboriginal societies in particular, that there is a ‘disjunction’ between the culture of the law and the culture of those societies, which can create a range of communication issues for Aboriginal people who participate in the legal system.42 (See 3 Language and Communication.)

14.3.4 Simplification of Forms, Orders and Judgments and Use of Plain English

The legal system’s prioritisation of communication in complex English, which can be compounded by the use of legal jargon and terminology to explain expectations, contributes to barriers to communication and comprehension experienced by Aboriginal and Torres Strait Islander peoples in court settings. These challenges can be experienced through spoken directions, court forms, orders and judgments as expressed in the usual format; they can often pose a bar to First Nations people seeking redress from the courts and/or impede their ability to comply with legal directions through lack of understanding.

While Aboriginal Liaison Officers may be of great assistance in helping Aboriginal and Torres Strait Islander peoples understand these documents, simplification of expression wherever possible can assist an Aboriginal and Torres Strait Islander person in understanding court proceedings. This could involve the use of plain English and simple grammar, concise expression, and omission of any unnecessary information from documents.

One example of simplification in practice was described by the Judicial Council on Diversity and Inclusion:

One stakeholder commended an experienced Magistrate who always used plain English to explain orders, for example, explaining that the terminology meant ‘Don’t come to the house when you are drunk or angry. Don’t swear or yell. Don’t lay hands on her’. This stakeholder noted that ‘orders need to get straight to the point and use simple language’.43

(See 3 Language and Communication.)

14.3.5 Supporting Aboriginal and Torres Strait Islander Women and Gender Diversity in Court

Courts should be mindful of how the role of gender can impact the experience of court for Aboriginal and Torres Strait Islander peoples.

Courts have demonstrated the capacity to control the conduct of their proceedings to be more culturally sensitive to the needs of Aboriginal and Torres Strait Islander women. In Lacey v Attorney-General (NSW), the NSW Court of Criminal Appeal confirmed that the inherent power of inferior courts includes the power to require the hearing of a matter by a female magistrate where there was evidence before the Court that the accused (who was recorded on camera being strip searched) would not defend the matter if it ‘could not be heard by a female magistrate’.44

In this case, there was evidence from an Aboriginal Legal Service field officer that

in Aboriginal cultures, the showing of a woman’s sensitive parts is considered woman’s business; that women’s business must only be conducted in the presence of women, never to be observed by males; and that the division of men’s and women’s business is lore to Aboriginal people that has been practised for thousands of years.45

In those circumstances, the Court’s inherent power was seen to include the ability to require hearing by a female magistrate ‘for the effective exercise of the function giving the applicant the fullest opportunity practicable to be heard, and to participate, in the proceedings’.46

For more information on addressing those barriers, see 3 Language and Communication.

14.3.6 Supporting Aboriginal and Torres Strait Islander Persons with Disabilities in Court

Aboriginal and Torres Strait Islander people with disability face particular barriers in court proceedings. For more information on understanding those barriers, see 3 Language and Communication.

14.3.7 Employment and Use of Indigenous Liaison Officers

The engagement of Indigenous Liaison Officers (‘ILOs’) has consistently been recommended as a crucial way of addressing barriers to full participation for Aboriginal and Torres Strait Islander people in legal proceedings. Employing ILOs and equipping them with the skills needed to undertake the role is an important way to implement the right to participation for Aboriginal and Torres Strait Islander people.

The importance of ILOs has been expressed as follows:

It’s very confronting that, given the amount of Aboriginal people in this community, there are almost no Aboriginal people in the court — in any capacity. The court feels very foreign. If there were Aboriginal staff in any capacity — in registry, on security — that would make a huge difference. For Aboriginal people, connection to people is everything. If we see our mob working in the courts, all of a sudden we’ll have a connection to the courts and courts will be more open to our people.47

In addition to changing perceptions of the court, ILOs have a vital role to play in breaking down language and communication barriers between Aboriginal and Torres Strait Islander people and the court. Josephine Akee, previously an Indigenous Liaison Officer at the Family Court of Australia, recounts first-hand the difference her role can make:

Even when I pick up the phone to take a client’s call, it’s interesting for me say in my nice English: ‘Hello Family Court here. Josephine, Family Liaison Officer speaking’ and you can hear the person mumbling at the other end of the line. Then when I wouldn’t get a further response, I would then break into what we call Torres Strait Creole: ‘It’s only me — Josephine talking’ and then you can almost feel the difference, and then they will open up. And I say: ‘You don’t have to speak good English when you speak to me, a fellow Islander’. We do things like that and it makes a difference.48

Akee envisions her role as being ‘a link between my fellow Indigenous Australians and the Family Law Courts’.49

Similarly, the Judicial Council on Cultural Diversity notes that Aboriginal Liaison Officers can be seen as ‘cultural brokers who could assist judicial officers by having a deep understanding of communities, cultural practices and ways of communicating’.50 The Council observes that judicial officers and administrative staff should develop a greater awareness of the complex responsibilities experienced by Aboriginal and Torres Strait Islander staff and support their professional development in performing these roles.51

Ways in which a judicial officer might make effective use of ILOs include:

  • allowing time for the ILO to familiarise the Aboriginal and/or Torres Strait Islander participant with the courtroom;

  • ensuring that the ILO is present whenever Aboriginal and/or Torres Strait Islander applicants or respondents are present; and

  • referring to the presence of the ILO and seeking their advice on relevant cultural issues during legal proceedings.

For more information, particularly on Indigenous Family Liaison Officers, see 7.2 Cultural Support in the FCFCOA. In relation to Special/Vulnerable witness schemes operating at the state and territory level, see 3.9.7 Special/Vulnerable Witnesses and Witness Intermediary Schemes.

14.4 Evidence

No doubt users of this Bench Book are familiar with the rules of evidence. There are also other chapters of this Bench Book that concern themselves with how courts can effectively receive evidence from Aboriginal and Torres Strait Islander people. We won’t replicate either of those here.

For resources on barriers to mutual communication and understanding in Court, see 3 Language and Communication, including:

  • 3.4 Cultural Barriers to Understanding (on cultural distinctions between Western and Indigenous communication styles);

  • 3.7 Effective Communication in Court (including the right to an interpreter, ensuring court orders are understood, and ensuring that Indigenous witnesses and parties are understood in turn); and

  • 3.9 Giving Evidence (on particular Indigenous interests in giving evidence in court, including allowing evidence in narrative form, particular vulnerabilities of some Indigenous witnesses, improper questions, and jury directions).

For resources on evidence in native title proceedings, including an overview of procedure, see 4 Native Title, in particular:

For guidance on evidence in criminal matters, see 9 Criminal Law, in particular:

14.4.1 Hearings on Country

On-country hearings (or parts thereof) are hearings held physically on Country, on sites relevant to the matter or closely accessible and relevant to the community. The Federal Court has significant expertise in conducting such hearings. Such hearings not only improve the quality of evidence received by the Court but can also shift perceptions of court processes. Talking about the Queensland Land Court hearing matters on Country, Murrawah Johnson told NITV:

We’re really hoping that this shifts the dynamic a little bit in terms of First Nations people engaging with the land court …

Hopefully this means that First Nations people [will] be able to give on-Country evidence in future cases to the land court, and that their knowledge [will be] really considered in the decisions that the land court makes …52

In the native title jurisdiction, such hearings are governed by the On Country Hearing Protocol for the Native Title Division,53 and the protocol may assist in other jurisdictions.

There are no constraints on the Federal Court holding hearings on Country for other matters where relevant, and some proceedings in which the Federal Court has recently conducted on Country hearings include administrative law,54 negligence55 and discrimination56 matters.

For more information in this Bench Book about on-Country Hearings, see:

14.4.2 Indigenous Protocols for Taking Evidence

In at least two recent matters, First Nations parties have proposed, and courts have adopted, protocols governing how evidence should be taken in a matter.

In Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5), the Queensland Land Court granted an application to take evidence on Country as outlined in a proposed ‘First Nations Protocol’.57 In determining the application, President Kingham held that the proceedings attracted the application of s 28(2)(a) of the Human Rights Act 2019 (Qld) which provided for the protection of cultural rights, stating that ‘it is unlawful for this Court to conduct this hearing in a way that is not compatible with human rights’.58 Notwithstanding that most of the relevant evidence could have been adduced by written evidence, the protocol set out the ‘cultural practice and preference’59 for First Nations people in Gimuy/Cairns and the Torres Strait Islands of Erub and Poruma giving evidence.

The Court held that refusing the request of the witnesses would ‘limit their ability to enjoy and maintain their cultural heritage, specifically about how traditional knowledge is imparted’.60 In addition, President Kingham noted the quality of the evidence was a relevant consideration:

In my experience as a lawyer and judicial officer, written evidence from a First Nations witness is a poor substitute for oral evidence given on country and in the company of those with cultural authority.61

More recently, in Davey v Northern Territory (No 5), the Federal Court was guided by a ‘Statement of Cultural and Customary Concerns’ proposed by the claim group: This statement

provided assistance as to the manner in which evidence might best be taken from the Claim Group members, and covered such topics as varying facility in the English language, caution in changing topics without notice, mispronunciation of place names and language words, questions about time, numbers, dates and years, questions using kinship terms such as ‘father’ and ‘mother’, silence and delay in answering questions, questions about secret law and gender restricted evidence.62

14.4.3 Evidence of Aboriginal and Torres Strait Islander Traditional Laws and Customs

The Evidence Act 1995 (Cth) (‘Evidence Act’) allows for both hearsay63 and opinion64 evidence of Aboriginal and Torres Strait Islander traditional laws and customs to be admitted, where

‘traditional laws and customs’ of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group.65

These exceptions were introduced to address the discord between the common law system and the oral tradition of knowledge transmission in First Nations communities:

Aboriginal societies do not relegate information passed on via oral tradition to a second class form of knowledge …; what is significant is the fact of the transmission, its source and to whom it has been passed.66

  • Hearsay Exception (s 72) — It has been said that s 72 of the Evidence Act provides ‘a broad flexible exception’67 which shifts the focus from admissibility to weight, for the exercise of discretionary powers to limit its use or exclude the evidence.68

  • Opinion Exception (s 78A) — Section 78A of the Evidence Act provides an exception for evidence of Aboriginal and Torres Strait Islander traditional laws and customs to the general prohibition on admission of opinion evidence.69

  • Expert Evidence (s 79) — Evidence laws also provide for an exception to the opinion rule to allow for the admission of expert evidence from a person who has specialised knowledge based on the person’s training, study or experience.70

Reliance on these provisions can assist, or frustrate, the interests of First Nations litigants and witnesses. On the one hand, these provisions have been relied upon to establish an evidential foundation for interrogating and identifying concerns such as systemic and/or institutional racism or bias (see 10.9.4.4 Expert Evidence).

First Nations peoples have historically not been heard by courts as authorities on their own affairs. This doesn’t just play out in the hearsay and opinion rule, or in the difficulties in giving cross-cultural evidence outlined in 3 Language and Communication. It also plays out in how expertise is thought about in relation to First Nations affairs, specifically in how experts are appointed.

Leanne Edwards, a Gkuthaarn woman from the Gulf of Carpentaria, and a member of the Gkuthaarn and Kukatj native title group, shared as part of her interview for the Women in Native Title report:

I think that’s the worst thing of the native title court system — they rather listen to an anthropologist report; and what was written down in history sometimes wasn’t exactly right.

They could have missed or misunderstood what that Elder was saying. They didn’t know how to speak English, they would just say ‘yes’ to that white person because they knew the consequences of saying ‘no’ or ‘that’s not right’. You know, there were consequences for speaking back to white people at that time.

And trying to explain to a white person your connection, and you gotta try and prove it, you know, it’s wrong in an Aboriginal person’s eyes — we try and tell a white person our connection, our Dreaming, yet they don’t have that same belief. How can you understand?71

The role of expert evidence in Indigenous litigation (particularly native title) has been the subject of research since the early 2000s and findings suggest that the rules of evidence might not line up with the way that much of this expert evidence is understood and developed.72

In other settings, like research, Indigenous people contest their right to be considered experts on themselves:

Getting heard or influencing outcomes in systems is tough and often frustrating because we know with the deep certainty of long experience that our knowledge is valid and we also know how great the need of our people is. … Shutting down our perspectives and ignoring our expertise might provide a feeling of temporary security within institutions and government departments, the feeling of business as usual, but in the end it is Aboriginal women who suffer the consequences.73

See also:

14.4.4 Addressing Evidentiary Difficulties

Aboriginal and Torres Strait Islander witnesses may experience difficulties in giving evidence because of the techniques used by lawyers in questioning witnesses, as well as the occurrence of unfair or improper questioning.

The Law Reform Commission of Western Australia notes that these difficulties may be addressed by judicial officers allowing the giving of narrative form evidence (rather than the usual question-and-answer format) where appropriate, and by being more vigilant in disallowing improper questioning.74

For more information on evidence and Aboriginal and Torres Strait Islander witnesses, see 3.9 Giving Evidence.

14.4.5 Practice Notes

The Federal Court also has a range of practice notes, procedures and guides relevant to evidence and procedure specifically for Indigenous people or Indigenous subject matters before the Court. They are relevant either because they specifically address First Nations people, or because there are matters in this Bench Book that may influence the Court’s understanding of how Indigenous people have specific interests in court procedure. We discussed the Native Title On Country Hearing Protocol for Parties at 14.4.2 Indigenous Protocols for Taking Evidence.

The practice notes are:

14.5 Open Justice

Open justice is one of the most fundamental aspects of the common law.75 At the core of the principle of open justice is the idea that courts should exercise their powers transparently. The principle has ‘two major tenets’:

  • Information disclosed in court must be able to be freely communicated; and

  • Justice must be administered in public.76

The High Court has explained:

The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.77

Where a statute affects the principle of open justice, even on a discretionary basis, it should ‘generally be construed, where constructional choices are open, so as to minimise its intrusion upon that principle’.78

The open justice principle also recognises the importance of the media being able to publish fair and accurate reports of proceedings. This is, arguably, particularly important for First Nations peoples, who routinely experience discriminatory treatment and structural racism that is either addressed or perpetuated by courts. The media organisations that cover these cases might also be beset by racism, misrepresentation and biases, but their coverage presents its own opportunities for change. The Honourable TF Bathurst AC suggests:

Just as a lack of transparency contributed to a significant extent to a lack of knowledge about the mistreatment of Indigenous Australians, in more recent times, publication of their ongoing mistreatment in the media has led to a better appreciation of the injustice perpetrated on them and places a real pressure on those who have the power to do so to remedy those injustices. This demonstrates that ‘open justice’ is more than a rather technocratic notion about ‘transparency’ and ‘accountability’ in how the courts administer justice, concerned only with how material filed or produced in court should be made available to the media.79

Open justice is important for First Nations people, although it is not itself sufficient as a measure of justice. First Nations people appear before Australian courts more often than non-Indigenous people and First Nations communities are disproportionately impacted by the laws applied and made by those courts.80 They also have complex relationships in which they share knowledge about family and community matters; these sometimes run afoul of court rules and orders.

But Aboriginal and Torres Strait Islander people also argue for safeguards on open justice. These include restricting the public’s access to sensitive cultural information81 and the cultural protection of vulnerable witnesses and evidence.82 Without these limits, Indigenous people would be unable to fully and safely participate in litigation or trials.

14.5.1 Suppression and Non-Publication Orders

The Federal Court has express statutory powers to make suppression orders and non-publication orders pursuant to pt VAA of the Federal Court of Australia Act 1976 (Cth) (‘FCAA’), although those provisions do not limit its powers.83

  • Suppression orders prohibit or restricts more broadly the disclosure of information, whether by publication or otherwise.

  • Non-publication orders prohibit or restrict the publication of information (but do not otherwise prohibit or restrict the disclosure of information).

In determining an application for a suppression order or non-publication order, the Court must ‘take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice’.84

14.5.1.1 Grounds and Subject Matter for the Order

The Court may make a suppression order or a non-publication order to prohibit or restrict the publication or disclosure of the identities of parties or witnesses (or associated persons) or other information in evidence, discovery, produced under subpoena, or otherwise lodged with the Court.

The Court may make an order on its own initiative or on the application of a party or a person with a sufficient interest in the making of the order.85 A party asking the Court to make an order has a ‘very heavy’ onus86 and other parties, governments and news publishers are entitled to be heard on the making of the order.87 Orders may be made either during the proceedings or after they have concluded.88

The grounds for making a suppression or non-publication order are:

  • preventing prejudice to the administration of justice;

  • preventing prejudice to national security;

  • protecting the safety of any person; or

  • avoiding causing undue stress or embarrassment to a party or witness in a criminal proceeding of a sexual nature.89

An order must be necessary to prevent prejudice to the administration of justice or national security or necessary to protect the safety of a person.90 Prejudice to the administration of justice includes First Nations peoples’ confidence in the fairness of the court system and ensuring their confidence in providing evidence or advancing claims.

Orders may also be made when they are necessary to avoid causing undue stress or embarrassment to a party or witness in a criminal proceeding of a sexual nature.91 Some First Nations cultures and people have gender-specific cultural sensitivities to sex and sexual assault, and these have been taken into account in other jurisdictions in the issuing of orders.92 For more information on gender restrictions in Indigenous evidence and procedure regarding sex and sexual assault, see 7 Children and Family Law.

In the native title context, the following factors have been identified as relevant to determining whether a suppression order was necessary:

  • the sensitivity of genealogical information;

  • the need for limited disclosure of traditional law and custom;

  • the educative value of public information about Aboriginal culture (where culturally appropriate);

  • the trauma connected to some family history evidence;

  • the confidence of future parties in providing evidence for proceedings; and

  • the capacity for expert witnesses to participate fully and frankly.93

Similarly, in Lacey v Attorney-General (NSW), Basten J ‘saw no reason’ why the Court Suppression and Non-Publication Orders Act 2010 (NSW) could not extend to an order prohibiting the viewing of evidence by third parties on the basis of cultural issues.94 There, it was held that a court may order a matter be heard before a female magistrate and evidence only be accessed by women because of sensitive cultural and gender issues (see 3.9.1.1 Indigenous Women).

14.5.1.2 Fair and Accurate Reportage and First Nations Media

The open justice principle recognises the importance of the media being able to publish fair and accurate reports of proceedings.

A news publisher is defined as ‘a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium’.95

First Nations news publishers can sometimes appear differently to mainstream news publishers. They may include community radio stations, specialist social media accounts, and blogs. While publishers of pure ‘opinion and comments’ or ‘scurrilous allegations’ may be precluded from consideration as a ‘news publisher’,96 some Indigenous non-traditional publishers fuse news reporting with opinion and should not be precluded from being heard on that basis. As Amy McQuire writes of one approach to Indigenous media:

We all have agendas in journalism, even if we are supposed to be ‘objective’ and ‘impartial’. For black media, there has never been any performative claim to be ‘objective’ — the very basis of Aboriginal journalism is to have an agenda, to use these tools as a form of activism for mob.97

It is worth remembering that First Nations communities are highly networked both by information and by familial relationships. With the use of social media blurring the lines between interpersonal communication and publication,98 and with First Nations people being prevalent users of social media,99 the Court should be aware that this creates a complicated situation for some Indigenous users of the Court.

14.5.2 Third-Party Access to, and Use of, Information

On occasion, third parties may seek to access or use information that:

14.5.2.1 Documents Forming Part of the Public Record

Once a document is received into evidence in open court and thereby becomes part of the court record, it may generally be accessed and used by others, including for purposes unrelated to the proceeding, unless there is a statutory restriction or a suppression order in place.100

14.5.2.2 Documents Filed in the Proceeding

Unless they are made confidential, privileged or otherwise suppressed, all documents filed in a proceeding may be inspected by a party, with some documents also available for inspection by non-parties.101

14.5.2.3 Objections to Access

Community members may wish to object to sensitive documents being made available for inspection. For First Nations communities, documents may be sensitive because their subject matter is traumatic or because there are cultural and social constraints on the disclosure of that knowledge.

Some Indigenous people may also prefer that people seeking to use tendered documents for other purposes come to them and instead seek that same evidence directly, as part of their cultural protocol. This was (unsuccessfully) submitted by the applicant in Nicholls obh of the Bundjalung People of Byron Bay and Attorney-General (NSW) (No 2):

The Applicant considers that if the Brunswick Valley Historical Society would like to ‘better address queries about local Aboriginal history’, that it should do so by making contact with the Bundjalung of Byron Bay (Arakwal) Aboriginal Corporation (‘the Corporation’) and developing a relationship with the native title holders concerned, or by referring those seeking information about local Aboriginal history to the Corporation.102

Some First Nations people and communities have also objected to the inaccessibility of court transcripts because of the considerable expense involved.103 It is often not possible for First Nations people to attend court to read transcripts in person because of geographic isolation and language barriers.

While it is most relevant to the law of contract and intellectual property, we point readers to the important concept of Indigenous Data Sovereignty (6.7) outlined in 6 Indigenous Cultural and Intellectual Property. Indigenous Data Sovereignty concerns the protocols with which Indigenous peoples can control, use and benefit from information gathered about them.

14.5.2.4 Information Created for Litigation but Not Filed or Admitted to the Record

Information that has come into existence for the purpose of litigation, but that is not part of the public record, may not be used for any purpose other than the litigation for which it was created, except by leave of the court.104

Courts have previously been asked by third parties for such leave for their use of anthropological documents105 and statements from community members106 prepared in relation to native title and cultural heritage matters. These can be sensitive because they may contain knowledge that is taboo, knowledge that is for only particular family groups, or knowledge that is traumatic, very personal or otherwise sensitive.

These documents and statements are evidence that is given with trust to the court process, or that is otherwise demanded by the court. Their use for other purposes, when not forming part of the case itself, can undermine future trust of Indigenous witnesses or litigants, and be seen to exploit the power of the court to compel evidence from Indigenous people. The Full Court has previously recognised that ‘there is a strong public interest in ensuring that Aboriginal peoples are not deterred in the future from agreeing to the use of court processes’.107

By contrast, courts have also been asked by First Nations plaintiffs to allow them to use information for the purposes of ulterior litigation, including litigation in opposition to other First Nations peoples.108 This should be dealt with sensitively.

14.5.2.5 Gender Restrictions on Evidence

Historically, the Federal Court has closed the Court or restricted access to evidence when dealing with cultural knowledge that is restricted along gender lines.109 One compelling reason this may be done is to protect the cultural safety of the person giving evidence, and thereby maintain a broader trust that Indigenous litigants and witnesses can place in the Court and its functions.

The Court in Western Australia v Ward held that the balance requires judges to:

evaluate the risk to the persons giving evidence, culturally and spiritually on the one hand, with the other factors to which reference has already been made on the other. Where the interests of justice in an overall sense require that evidence be given only to persons of particular gender, there is no reason why the Court should not confine the class of persons to whom that evidence may be given to persons of a particular gender. But the Court in so doing will be careful to ensure as best it can that justice is done not only to the person seeking to restrict the persons to whom the evidence may be made known, but also to the other parties to the litigation.110

The position in Ward is generally the accepted practice, and consideration is also given to this practice in the Federal Court Rules. For example, parties may apply for orders relating to the presentation of evidence about a cultural or customary subject111 or for orders to take account of the cultural or customary nature of a party or other person.112 Where cultural evidence is to be given to the Court in a format such as dancing, singing or storytelling, the party who seeks to adduce it must give details of any secrecy or confidentiality requirements.113

The Federal Court’s Native Title On Country Hearing Protocol requires that the Court be provided with cultural requirements at areas and sites where a hearing is held, including ‘gender restrictions or concerns’.114

14.6 Contempt

There’s an in-built assumption from lawyers, the judiciary and the criminal justice system that because law is serious it should be the priority of those drawn into it. This assumption is not an accurate reflection of the reality of the lives that so many of our people are living; engaging with the law and legal systems is often not the most significant or pressing issue in people’s lives or it is one issue among many. Engagement in the criminal justice system can be just one issue among a multitude of issues effecting the lives of our people; as individuals, as members of a family and members of a broader cultural group. The criminal justice system, the health system, the housing system, the child protection system — there are so many systems that are difficult for our people to navigate that demand immediate and consistent attention. They can all present as spaces where we are neither welcome nor accommodated. The criminal justice system and those other systems punish us when we don’t prioritise our lives consistent with what they think our priorities should be, without recognising how emotionally and practically overwhelming it is to manage engagement in multiple systems at any one time.115

— Chief Magistrate Louise Taylor (Kamilaroi woman)

Contempt is conduct that defies the authority or dignity of a court or legislature.116 Contempt raises unique issues for First Nations peoples, given that the authority being exercised by the court is considered by many to be a denial of First Nations sovereignty. Caution is advised to ensure that contempt remains an instrument of last resort to regulate conduct within a court.117

There are important cautions on the use of contempt for Indigenous peoples before the Federal Court.

14.6.1 Frustrated Expectations of the Court

Sometimes Indigenous witnesses who are victims or survivors of violence may refuse to give evidence to or otherwise cooperate with the Court, including by failing to appear.

This could be done for complex reasons that are familiar to many in the domestic, family and sexual violence space. These reasons are similar to the reasons why Indigenous victims of violence don’t disclose their experience to legal institutions or support services in the first place, and include:

  • perceptions that the justice system will be ineffective;

  • fear of not being believed;

  • distrust and fear of police and courts, and of government agencies;

  • fear of retribution from the accused or from their family networks;

  • fear of retribution or consequences from government agencies (including the removal of children);

  • complicated relationship with the person who has used or is accused of using violence;

  • fear of being retraumatised by court processes;

  • reliance on the accused or the accused’s networks for housing, cultural, familial or financial support; and

  • reluctance to see another Indigenous person imprisoned.118

Moreover, there are often other hurdles to court processes experienced by First Nations people that should not be responded to with contempt proceedings or threatened contempt, notably:

  • failing to abide by orders for reasons outside their control;

  • failing to observe court etiquette or ritual (e.g. standing, bowing); or

  • failing to appear.

These hurdles exists for numerous reasons. Courts should be aware of, and if necessary seek submissions on, the various obstacles that some First Nations people face in their capacity to meet court expectations.

When Aboriginal and Torres Strait Islander people, women in particular, are threatened with or criminalised for contempt, it undermines trust in the court and risks creating institutional trauma on top of their existing experiences.

The Domestic and Family Violence Bench Book119 addresses victim-survivor’s experiences of court processes. While it is not specific to Indigenous people or Federal Court processes, it may be of use in understanding how court processes can be intimidating and difficult to comply with for people who experience violence.

We also refer readers to 8 Family, Sexual and Gendered Violence for a fuller picture of how Indigenous peoples’ experiences of violence can impact their capacity to meet court demands, particularly:

14.6.2 Contempt and Court Security

Some First Nations people may contest the legitimacy of Australian courts, including through criticism or adverse comment on decisions made by the court or matters before the court. The way they do this, and the degree to which a judicial officer perceives this to impact the functions of a court, may attract contempt proceedings.

Courts should be extremely cautious in commencing contempt proceedings against Indigenous people where the basis of the contempt is behaviour that contests the business of the court. This behaviour must be seen in its historical and social context.

For examples of alternative options to summary charges of contempt, see [48-040] of the Local Court Bench Book.120

Section 39 of the Court Security Act 2013 (Cth) sets out a general prohibition on recording or transmitting from any federal court, and the powers of security officers and authorised court officers to make directions, remove a person from court, or prevent them entering. We caution that sometimes Indigenous people, families and communities will take photos of themselves on court premises to mark what, for them, may be a significant family occasion. While this is contrary to the Act, it does not contravene the principle behind the prohibition, which is to protect witnesses and court attendees from harassment, disturbance and violations of privacy. Sensitivity and discretion might be required.

In certain important court matters in the past, security and police have been used to heavily monitor and restrict Indigenous community presence in the court. This has intimidated community members. It gives the impression that Indigenous people are unwelcome at court and suggests that they are at personal risk of arrest or violence from police and security if they attend court for matters that impact them and their community. This is antithetical to open justice and should be discouraged. For example, at a hearing related to the disappearances of three Aboriginal children from Bowraville, riot police were sent to the court, filling the front two rows of the courtroom.121 This was intimidating and traumatising for family and community members, particularly since the adequacy of and racism in the police investigation was a live matter.

14.7 Governments as Model Litigants

State, territory and Commonwealth governments have duties to act as a model litigant. This involves an overarching duty to act honestly, fairly, with complete propriety and in accordance with the highest professional standards.122 Practical considerations that go to compliance with model litigant obligations include the following:

  • Minimising costs and delay — For example, where appropriate, a government party could consider the use of an agreed statement of facts, or the early exchange of evidence such as expert reports.

  • Complying with court rules or procedures — It has been held that lack of resources available to a government agency is not an answer to a delay in compliance with a court timetable.123

  • Having regard to the subject matter of a claim — It is not always appropriate to rely on statutory limitations or a request for further particulars in matters of a highly sensitive nature.

14.8 Therapeutic Jurisprudence

Scholars and judges more and more are interested in how conflict, illness, trauma and poor physical and mental health are part of legal disputes. They also seek to understand how courts might themselves traumatise or negatively impact the wellbeing of those who appear before them as parties, witnesses or other impacted persons.

Therapeutic jurisprudence is a general theory concerned with the impact of legal processes upon participants in the justice system. The theory examines how processes used by courts (including judicial officers) can either impede or promote ‘outcomes connected with participants’ wellbeing’ including their perspectives of the justice system and the law.124

Therapeutic jurisprudence has particular significance for Aboriginal and Torres Strait Islander peoples, who are commonly before courts because of the impact of colonisation and who are sometimes subject to the harms of racism in court. Therapeutic jurisprudence is also relevant to Aboriginal and Torres Strait Islander cultures and legal systems, where the wellbeing and relationships of the whole community are prioritised in how disputes are adjudicated or resolved.

While some judicial settings are specifically designed to deliver this model of justice, any court can inform itself of therapeutic jurisprudence and work within its power to effect those principles.

14.8.1 Specialist Courts and Lists

There have been attempts by magistrates to collaborate in the design of special sentencing courts. Common to these approaches are

the court convening in a less formal atmosphere around a table in a room rather than in a formal court setting; a departure from court formalities including standing and bowing; a recognition by the judicial officer of the traditional owners and respect for their culture; the promotion of voice, validation and respect of all involved; active listening; promotion of decision making where all are involved in the process; and the promotion of restorative outcomes.125

For a more detailed discussion of such courts, see 3.8 Self-Determined and Therapeutic Practice and Procedure and 9.7 Therapeutic, Restorative and Solution-Focused Justice.

14.8.2 Trauma-Informed Lawyering

In addition to these specialist courts, there is a developing awareness of trauma-informed approaches within the general courts. Further information on trauma-informed lawyering can be found in several sources. For the purposes of this Bench Book, we refer you to:

14.9 Further Reading

14.9.1 Books

Watson, Nicole (Birri Gubba and Munanjali) and Heather Douglas, Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making (Routledge, 2021)

This book is a collection of key legal decisions affecting Indigenous Australians, which have been reimagined by Indigenous and non-Indigenous scholars so as to be inclusive of Indigenous people’s stories, historical experience, perspective and worldviews. The book consists of five parts: Part 1: Sovereignty, Part 2: Landy and Sea Country, Part 3: Racism and Discrimination, Part 4: Family and Identity and part 5: Criminalisation and Criminal Neglect.

14.9.2 Television/Film

Indigenous Documentaries’, ABC iview (Web Page) <https://iview.abc.net.au/collection/518>.

Indigenous Documentaries on ABC iview provides open access to a number of Indigenous-led and/or focussed documentaries.

Judgment: Cases That Changed Australia (Australian Broadcasting Corporation, 2025) <https://iview.abc.net.au/show/judgment-cases-that-changed-australia>.

This four part serious written and directed by Distinguished Professor Larissa Behrendt and award-winning documentary film-maker Victoria Midwinter Pitt, explores how the High Court has shaped the nation covering Mabo, Marriage Equality, Immigration and the right to Vote.

‘Justice’, NITV (Web Page) <https://www.sbs.com.au/nitv/topic/justice>.

The Justice catalogue on NITV provides open access to current affairs and news stories impacting Aboriginal and Torres Strait Islander peoples across the continent with a focus on Deaths in Custody and Racism.

Behrendt, Larissa (Euahleyai/Gamillaroi) (Director), After the Apology (Pursekey Productions, 2017)

Suellyn thought FACS would only remove children in extreme cases until her own grandchildren were taken. Hazel decided to take on the FACS system after her fourth grandchild was taken into state care. Jen Swan was raising her grandchildren until she was deemed unsuitable by FACS. The rate of Indigenous child removal has increased at an exponential rate since Prime Minister Kevin Rudd delivered the apology to the Stolen Generations in 2008. Hazel started Grandmothers Against Removals as a response to the rising rates of child removal and along the way she has been joined by families across Australia in the battle to bring the kids home. Together they are not only taking on the system, they are changing it.

Behrendt, Larissa (Euahleyai/Gamillaroi) (Director), Innocence Betrayed (Ronin Films, 2013) (52 mins)

Innocence Betrayed is a documentary that follows the parents of three murdered Aboriginal children and their 23 year long fight for justice. The murders happened in the small NSW town of Bowraville within a five-month period in the early 1990s. There has only ever been one suspect — a white man who was brought to trial for the murder of the two children but never convicted. He has always maintained his innocence. The documentary is written, directed and narrated by the case’s former lawyer, Larissa Behrendt, who explores the actions of the legal system and the impact of these on the families’ fight for justice.

14.9.3 Reports

The Yoorrook Justice Commission was Australia’s first formal Indigenous-led truth-telling process. In 2023, the Commission published its second interim report, which explores systemic injustices, racism, discriminatory laws and policy failures in the child protection and criminal justice systems.

As part of the inquiry, Yoorrook gathered a significant amount of evidence from the community through formal submissions, hearings and roundtable discussions. Across both the child protection and criminal justice systems, the report documents serious deficits in three key areas that are critical to promoting self-determination and to ending the systemic injustices that the State has inflicted and continues to inflict on First Nations Peoples: monitoring and accountability; cultural competence and responsiveness, including human rights capability; and the need to strengthen human and cultural rights compliance.

The report makes 46 recommendations across five categories:

  • transformative change to the child protection and the criminal justice systems through the treaty process;

  • urgent actions across both the child protection and criminal justice systems relating to accountability, cultural competency and responsiveness, and strengthening compliance with human and cultural rights obligations;

  • urgent reforms to the child protection system;

  • urgent reforms to the criminal justice system; and

  • legislative reforms required to enable Yoorrook to fulfill its mandate for truth-telling.


1Consultation with Judge David Woodroffe (Jingili Mudburra) (Layota Rule (Wiradjuri and Te Ātiawa), Jumbunna Institute of Indigenous Education and Research, University of Technology Sydney, 11 April 2024). This quote was provided with the consent of Judge Woodroffe for the purpose of the National Bench Book on Aboriginal and Torres Strait Islander Peoples and the Legal System.

2Jamelle Wells, ‘White Man’s “Justice” Letting Indigenous People Down, Retiring NSW Supreme Court Top Judge Says’, ABC News (online, 28 February 2022) <https://www.abc.net.au/news/2022-02-28/retiring-nsw-supreme-court-chief-tom-bathurst-indigenous-issues/100863100>.

3Law Council of Australia, ‘Judicial Impartiality: Consultation Paper’, Australian Law Reform Commission (8 July 2021 Online Report), [96].

4Law Council of Australia, ‘Judicial Impartiality: Consultation Paper’, Australian Law Reform Commission (8 July 2021 Online Report), [97].

5International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.

6Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-13–6-14 [36], citing Submission 110 and 111 to Australian Law Reform Commission, Australian Law Reform Commission, Pathways to Justice — An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133, 2017) [3.2].

7Chris Cunneen, ‘Judicial Racism’ (1992) 1(58) Aboriginal Law Bulletin 9.

8Emilia Terzon and Jacqueline Breen, ‘Complaint Lodged against Judge Who Made “Offensive”, “Discriminatory” Comments to Aboriginal Defendants’, ABC News (online, 26 July 2019) <https://www.abc.net.au/news/2019-07-26/complaint-lodged-nt-judge-discriminatory-offensive-aboriginal/11349360>.

9Emilia Terzon and Jacqueline Breen, ‘Complaint Lodged against Judge Who Made “Offensive”, “Discriminatory” Comments to Aboriginal Defendants’, ABC News (online, 26 July 2019) <https://www.abc.net.au/news/2019-07-26/complaint-lodged-nt-judge-discriminatory-offensive-aboriginal/11349360>.

10Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-11 [27].

11Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-8 [16], citing Chris Guthrie, Jeffrey J Rachlinski and Andrew J Wistrich, ‘The “Hidden Judiciary”: An Empirical Examination of Executive Branch Justice’ (2009) 58(3) Duke Law Review 1477, 1501–4.

12Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-11 [37].

13Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-15.

14Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-20.

15Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-21.

16Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-21.

17Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-21.

18Australian Law Reform Commission, ‘Judicial Impartiality: Cognitive and Social Biases in Judicial Decision-Making’ (Background Paper No J16, April 2021) JI 6-22.

19Vanessa Cavanagh, Elena Marchetii, ‘Judicial Indigenous cross-cultural training: What is available, how good is it and can it be improved?’ (2015) Australian Indigenous Law Review, 19(2), 45-63, 47.

20Vanessa Cavanagh, Elena Marchetii, ‘Judicial Indigenous cross-cultural training: What is available, how good is it and can it be improved?’ (2015) Australian Indigenous Law Review, 19(2), 45-63, 45.

21See Gabrielle Appleby, Jessica Kerr, Suzanne Le Mire, Andrew Lynch and Brian Opeskin, Judicial Education in Australia: A Contemporary Overview (Report, Australasian Institute of Judicial Administration, December 2021).

22National Judicial College of Australia, Attaining Judicial Excellence: A Guide for the NJCA (Guide, November 2019) 1.

23You can find these events listed at ‘Judicial Education Pathway’, National Judicial College of Australia (Web Page) <https://www.njca.com.au/judicial-education-pathway/>.

24National Judicial College of Australia, Attaining Judicial Excellence: A Guide for the NJCA (Guide, November 2019).

25Royal Commission into Aboriginal Deaths in Custody (Final Report, April 1991) vol 5, Recommendations, recommendation 96.

26Vanessa Cavanagh, Elena Marchetii, ‘Judicial Indigenous cross-cultural training: What is available, how good is it and can it be improved?’ (2015) Australian Indigenous Law Review, 19(2), 45-63, 50.

27Vanessa Cavanagh, Elena Marchetii, ‘Judicial Indigenous cross-cultural training: What is available, how good is it and can it be improved?’ (2015) Australian Indigenous Law Review, 19(2), 45-63, 50.

28Vanessa Cavanagh, Elena Marchetii, ‘Judicial Indigenous cross-cultural training: What is available, how good is it and can it be improved?’ (2015) Australian Indigenous Law Review, 19(2), 45-63, 50.

29Vanessa Cavanagh, Elena Marchetii, ‘Judicial Indigenous cross-cultural training: What is available, how good is it and can it be improved?’ (2015) Australian Indigenous Law Review, 19(2), 45-63, 50.

30The College has resources on courtcraft: see ‘Courtcraft’, Judicial College of Victoria (Web Page) <https://judicialcollege.vic.edu.au/resources/courtcraft>.

31Federal Court of Australia Act 1976 (Cth) s 37M.

32June Oscar, ‘Mabo Oration: National Native Title Conference 2017’ (2017) 8(29) Indigenous Law Bulletin 3, 4.

33See generally Australian Law Reform Commission, Connection to Country: Review of the Native Title Act (Report No 126, May 2015) [7.7]–[7.36].

34Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v Western Australia [2024] FCA 1114, [44]–[46].

35Rosanne Maloney, ‘Federal Court Records Karajarri Elder Evidence Ahead of Native Title, Compensation Claims’, ABC News (online, 5 November 2024) <http://abc.net.au/news/2024-11-05/federal-court-on-karajarri-country-elders-testify-kimberley-wa/104549688>.

36Federal Court of Australia, Native Title Practice Note (NT-1), 7 February 2025, para 5.2.

37Thalia Anthony and Craig Longman, ‘Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds’ (2016) 6(3) International Journal for Crime, Justice and Social Democracy 25.

38Royal Commission into Aboriginal Deaths in Custody (Final Report, April 1991) vol 5, Recommendations, recommendation 96.

39‘The Path to Justice: Aboriginal and Torres Strait islander Women’s Experience of the Courts’, JCCD Consultation Report, (20 March 2016, Online Report), The Judicial Council on Diversity and Inclusion <https://jcdi.org.au/wp-content/uploads/2021/06/JCCD_Consultation_Report_-_Aboriginal_and_Torres_Strait_Islander_Women.pdf>, 31.

40‘The Path to Justice: Aboriginal and Torres Strait islander Women’s Experience of the Courts’, JCCD Consultation Report, (20 March 2016, Online Report), The Judicial Council on Diversity and Inclusion <https://jcdi.org.au/wp-content/uploads/2021/06/JCCD_Consultation_Report_-_Aboriginal_and_Torres_Strait_Islander_Women.pdf>, 32.

41Dr Diana Eades, Submission No 30 to Australian Senate Inquiry, Missing and Murdered First Nations Women and Children, 11 November 2022, [2].

42Dr Diana Eades, Submission No 30 to Australian Senate Inquiry, Missing and Murdered First Nations Women and Children, 11 November 2022, [3].

43‘The Path to Justice: Aboriginal and Torres Strait islander Women’s Experience of the Courts’, JCCD Consultation Report, (20 March 2016, Online Report), The Judicial Council on Diversity and Inclusion <https://jcdi.org.au/wp-content/uploads/2021/06/JCCD_Consultation_Report_-_Aboriginal_and_Torres_Strait_Islander_Women.pdf>, 29.

44Lacey v A-G (NSW) [2021] NSWCA 27, [109] (McCallum JA).

45Lacey v A-G (NSW) [2021] NSWCA 27, [52] (McCallum JA).

46Lacey v A-G (NSW) [2021] NSWCA 27, [109] (McCallum JA).

47‘The Path to Justice: Aboriginal and Torres Strait islander Women’s Experience of the Courts’, JCCD Consultation Report, (20 March 2016, Online Report), The Judicial Council on Diversity and Inclusion <https://jcdi.org.au/wp-content/uploads/2021/06/JCCD_Consultation_Report_-_Aboriginal_and_Torres_Strait_Islander_Women.pdf>, 34.

48Josephine Akee (Torres Strait Islander), ‘The Role of Indigenous Family Liaison Officers in the Family Court of Australia’ Family Matters, (2006), no.75, 80-82.

49Josephine Akee (Torres Strait Islander), ‘The Role of Indigenous Family Liaison Officers in the Family Court of Australia’ Family Matters, (2006), no.75, 80-82, 81.

50‘The Path to Justice: Aboriginal and Torres Strait islander Women’s Experience of the Courts’, JCCD Consultation Report, (20 March 2016, Online Report), The Judicial Council on Diversity and Inclusion <https://jcdi.org.au/wp-content/uploads/2021/06/JCCD_Consultation_Report_-_Aboriginal_and_Torres_Strait_Islander_Women.pdf>, 35.

51‘The Path to Justice: Aboriginal and Torres Strait islander Women’s Experience of the Courts’, JCCD Consultation Report, (20 March 2016, Online Report), The Judicial Council on Diversity and Inclusion <https://jcdi.org.au/wp-content/uploads/2021/06/JCCD_Consultation_Report_-_Aboriginal_and_Torres_Strait_Islander_Women.pdf>, 35.

52NITV News, ‘On-Country Evidence in Landmark Case against Clive Palmer’s Coal Project’, NITV News (online, 31 May 2022) <https://www.sbs.com.au/nitv/article/on-country-evidence-in-landmark-case-against-clive-palmers-coal-project/6eiueghuy>.

53Federal Court of Australia, Native Title On Country Hearing Protocol for Parties, 22 June 2021.

54In Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121, the Federal Court conducted one day of hearings on the Tiwi Islands: at [18]. The Court travelled to the Tiwi Islands so that Tiwi Elders could testify on Country, enabling Traditional Owners to communicate the cultural and spiritual significance of their sea Country through songs and dances near the contested site: Environmental Defenders Office, ‘Historic Day as Court Hears Evidence from First Nations Witnesses on-Country in the Tiwi Islands’ (Web Page, 29 August 2022) <https://www.edo.org.au/2022/08/29/historic-day-as-court-hears-evidence-from-first-nations-witnesses-on-country-in-the-tiwi-islands/>.

55In Pabai v Commonwealth (No 2) [2025] FCA 796, the Federal Court held hearings on Country where Torres Strait applicants sought to give evidence of the impact of climate change on their Country and culture. This was a climate change matter. A collection of orders governing how this is done can be found in this matter’s public file: ‘Pabai Pabai v Commonwealth of Australia: Online File’, Federal Court of Australia (Web Page, 15 July 2025) <https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/pabai-v-australia>.

56In Wotton v Queensland (No 5) [2016] FCA 1457, the Federal Court conducted hearings on Palm Island, both to be accessible to the Palm Island community and to conduct views of the relevant locations.

57Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5) [2022] QLC 4, [2].

58Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5) [2022] QLC 4, [17].

59Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5) [2022] QLC 4, [14].

60Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5) [2022] QLC 4, [22] (Kingham P).

61Waratah Coal Pty Ltd v Youth Verdict Ltd (No 5) [2022] QLC 4, [38].

62Davey obh of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory (No 5) (McArthur River Project Compensation Claim) [2026] FCA 153, [108] (Banks-Smith J).

63Evidence Act 1995 (Cth) s 72.

64Evidence Act 1995 (Cth) s 78A.

65Evidence Act 1995 (Cth) dictionary (definition of ‘traditional laws and customs’).

66Anonymous Aboriginal Land Council, Submission to Australian Law Reform Commission, Uniform Evidence Law (27 April 2005).

67Neil Williams, John Anderson, Judith Marychurch and Julia Roy, Uniform Evidence in Australia (LexisNexis Butterworths, 2015) 329 [72-2].

68Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 16th ed, 2021) 522 [EA.72.60], citing Re Estate of Jerrard [2018] NSWSC 781.

69Evidence Act 1995 (Cth) s 76.

70Evidence Act 1995 (Cth) s 79.

71Australian Human Rights Commission, Women in Native Title: Native Title Report 2024 (March 2024) 226.

72See Ann Curthoys, Ann Genovese and Reilly Alexander ‘Rights and Redemption: History, Law and Indigenous People’ (2008) NewSouth Publishing, Sydney.

73Juanita Sherwood, Stacey Lighton, Kay Dundas, Teresa French, Dixie Link-Gordon, Kath Smith and Thalia Anthony, ‘Who are the Experts Here?: Recognition of Aboriginal women and community workers in research and beyond’ (2015) 11(2) AlterNative an International Journal of Indigenous Peoples 177, 183, 186.

74Law Reform Commission of Western Australia, Aboriginal Customary Laws: The Interaction of Western Australian Law with Aboriginal Law and Culture (Final Report, September 2006).

75John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324, [18] (Spigelman CJ).

76Judicial College of Victoria, Open Courts Bench Book (December 2013) [2].

77Commissioner of the Australian Federal Police v Zhao [2015] HCA 5, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

78Hogan v Hinch [2011] HCA 4, [27] (French CJ).

79Tom Bathurst, ‘Something More, Something Less: The Contemporary Meaning of Open Justice’ (2019) 38(4) Communications Law Bulletin 10.

81See, eg, Booth v Victoria (No 3) [2020] FCA 1143.

82See, eg, Lacey v A-G (NSW) [2021] NSWCA 27, [21].

83Federal Court of Australia Act 1976 (Cth) s 37AB. This section will consider the FCAA as illustrative of general principles, but similar parts exist in many relevant pieces of legislation: for example, pt XIA of the Family Law Act 1975 (Cth), and s 27 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) which empowers the Court to close proceedings in the interests of ‘justice’ and ‘Aboriginal tradition’. There are also standing statutory limits on publication of some matters. For example, s 114Q of the Family Court Act 1975 (Cth) prohibits the publication of details that identify or would tend to identify parties and witnesses in a proceeding.

84Federal Court of Australia Act 1976 (Cth) s 37AE.

85Federal Court of Australia Act 1976 (Cth) s 37AH(1).

86Giddings v Australian Information Commissioner [2017] FCAFC 225.

87Federal Court of Australia Act 1976 (Cth) s 37AH.

88Federal Court of Australia Act 1976 (Cth) s 37AH(3).

89Federal Court of Australia Act 1976 (Cth) s 37AG(1).

90Federal Court of Australia Act 1976 (Cth) ss 37AG(1)(a)–(c).

91Federal Court of Australia Act 1976 (Cth) s 37AG(1)(d).

92Lacey v A-G (NSW) [2021] NSWCA 21.

93Booth v Victoria (No 3) [2020] FCA 1143, [35]–[40].

94Lacey v A-G (NSW) [2021] NSWCA 21.

95Federal Court of Australia Act 1976 (Cth) s 37AA (definition of ‘news publisher’).

96Porter v Australian Broadcasting Corporation [2021] FCA 863.

97Amy McQuire, Black Witness (UQP, 2024) 87–8.

98See, eg, Bronwyn Lumby, ‘Cyber-Indigeneity: Urban Indigenous Identity on Facebook’ (2010) 39(S1) Australian Journal of Indigenous Education 68.

99Emma Rice, Emma Haynes, Paul Royce and Sandra Thompson, ‘Social Media and Digital Technology Use among Indigenous Young People in Australia: A Literature Review’ (2016) 15(1) International Journal for Equity in Health 81.

100Federal Court Rules 2011 (Cth) r 2.32(1).

101Federal Court Rules 2011 (Cth) r 2.32.

102Nicholls obh of the Bundjalung People of Byron Bay and A-G (NSW) (No 2) [2019] FCA 1797, [5] (Robertson J).

103Jumbunna Institute for Indigenous Education and Research, Aboriginal Legal Service (NSW/ACT) and National Justice Project, Submission to the NSW Law Reform Commission, Open Justice Review (5 March 2021) 16 [64].

104Hearne v Street [2008] HCA 36.

105Glencore Coal Pty Ltd v Franks [2021] FCAFC 61.

106Nicholls obh of the Bundjalung People of Byron Bay and A-G (NSW) (No 2) [2019] FCA 1797.

107Glencore Coal Pty Ltd v Franks [2021] FCAFC 61, [45].

108See, eg, Booth obh of the Gunaikurnai People Claim Group v Victoria [2022] FCA 1395.

109See Western Australia v Ward (1997) 76 FCR 492.

110Western Australia v Ward [1997] FCA 585, (Hill and Sundberg JJ).

111Federal Court Rules 2011 (Cth) r 34.120(2)(f).

112Federal Court Rules 2011 (Cth) r 34.121.

113Federal Court Rules 2011 (Cth) r 34.123.

114Federal Court of Australia, Native Title On Country Hearing Protocol for Parties, 22 June 2021, para 2(e).

115Consultation with Chief Magistrate Louise Taylor (Kamilaroi), Jumbunna Institute of Indigenous Education and Research, University of Technology Sydney, 1 August 2024). This quote was provided with the consent of Chief Magistrate Taylor for the purpose of the National Bench Book on Aboriginal and Torres Strait Islander Peoples and the Legal System.

116Black’s Law Dictionary (11th ed, 2019) ‘contempt’ (def 3).

117In the Federal Court, contempt is provided for in Federal Court of Australia Act 1976 (Cth) s 31 and in Federal Court Rules 2011 (Cth) pt 42 (generally) and r 24.23 (failure to comply with a subpoena). In the Family Court, it is (generally) dealt with under s 112AP of the Family Law Act 1975 (Cth).

118For a helpful collation of some of the literature on this, see Matthew Willis, ‘Non-Disclosure of Violence in Australian Indigenous Communities’ (Trends & Issues in Crime and Criminal Justice No 405, Australian Institute of Criminology, January 2011).

119Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book (August 2025).

120Judicial Commission of New South Wales, Local Court Bench Book (September 2024) [48-040].

121Legislative Council Standing Committee on Law and Justice, Parliament of New South Wales, The Family Response to the Murders in Bowraville (Final Report, November 2014) 51 [4.64]–[4.65].

122Australian Securities and Investments Commission v Hellicare [2012] HCA 17, [239] (Heydon J).

123Kenny v South Australia (1987) 46 SASR 268, 273.

124Australasian Institute of Judicial Administration, Australasian Therapeutic Jurisprudence Clearinghouse [1.1] (‘The Concept of Therapeutic Jurisprudence’).

125Australasian Institute of Judicial Administration, Australasian Therapeutic Jurisprudence Clearinghouse [3.6] (‘Indigenous Issues and Indigenous Sentencing Courts’).