Preliminaries

The rule of law is a fundamental pillar of a peaceful and democratic society. A core precept of the rule of law is equal justice for all. Indigenous Australians all too often face linguistic, cultural, economic and geographic barriers to justice. The publication of the National Bench Book on Aboriginal and Torres Strait Islander Peoples and the Legal System is a welcome initiative aimed at improving access to justice for Indigenous Australians, a goal long championed by the Australasian Institute of Judicial Administration.

This bench book will no doubt serve as an essential resource for members of the legal profession and the judiciary in facilitating the administration of justice and promoting fair and culturally sensitive legal processes for Indigenous Australians. Distinguished Professor Larissa Behrendt AO and Professor Craig Longman and the many contributing authors are to be congratulated for their groundbreaking work as is Ms Michelle Toy, the project manager for this important project.

The Hon Justice Julie Ward
AIJA President
30 March 2026

The moment of our asserted dispossession by occupation of the Bidjigal lands and then Gadigal lands by the First Fleet, was the moment (under Australian law) at which First Nations law was pushed aside.

In 2024, the Supreme Court of New South Wales celebrated the bicentenary of its establishment under the New South Wales Act 1823 (UK) and the Third Charter of Justice 1823 (Letters Patent, King George IV). In 1841, the Supreme Court then determined in R v Bonjon [1841] NSWSupC92 that the imported law applied to Aboriginal people as regards offences under NSW law against other Aboriginal people, therefore in all circumstances.

The British, then colonial, and ultimately Australian law applied to First Nations people has been the boot that, with government intent, trampled on First Nations territoriality, authority and occupation, and delivered up to the invaders the wealth and resources of the lands and waters. However, following Second World War and the rise of principles of universal human dignity and equality, there has been a slow, some would say inexorable, movement away from the harshest consequences of a legal system designed to dispossess and oppress. The introduction of human rights, anti-discrimination, cultural heritage protection, land rights legislation, provisions relating to the protection of children, and the matters to be taken into account in sentencing are all improvements on that which existed in my father and grandparents time.

Even now, reading about the life of William David Bugmy in Bugmy v The Queen, or the life and death of Naomi Williams in the Inquest into the death of Naomi Williams (29 July 2019), or the native title decisions in respect of the Badimia people or the Bidjara people reminds me of so many of my community, former clients, and family. For every generation since contact with the British colonies, and those into the foreseeable future, those stories of deep trauma, and continuing discrimination are ever-present. It is impossible for a First Nations person to avoid the brutality and daily oppression of mind, body and spirit that are the hallmarks of British (and European) invasion of the “new worlds”.

In Bugmy, counsel for the Appellant asked the High Court to find that when sentencing a First Nations person for criminal offending, there should be a presumption that the offender has suffered and continues to suffer conditions of severe disadvantage by reason of their First Nations status, and that ought to be taken into account by the judge. The High Court declined to make that broad finding but, nevertheless, held the familial and social circumstances in which a First Nations offender was born, raised, and has lived their life, is relevant to delivering individualised justice. The finding might be correct at one level, but only if one refuses to accept that the First Nations people and communities in existence today are the survivors, and there is a commonality of our experiences bordering on uniformity. The High Court missed the opportunity to bring historical and present-day realities into the sentencing process. Would this outcome have been any different had they had access to a national Aboriginal and Torres Strait Islanders Bench Book? We will never know.

Notwithstanding a slowness to come to terms with Australia’s legal, economic and social history, judicial officers and practitioners can come to understand the ways and means of applying the law in a manner that is cognisant of, and skilled in, identifying and responding to trauma, epi-genetic responses, and neuro-cognitive disability, but also with greater understanding of the strength, resilience and adaptability of First Nations individuals, families and communities. Mostly, the lack of understanding stems from the fact that system is largely absent of First Nations judges and lawyers, the education system has hidden the truths, and most are without the life experience or exposure to First Nations people, culture and ways of being. This Bench Book seeks to help fill that gap.

The principles, insight and analysis contained in the pages of this Bench Book, should find daily use in the courts of this country. It has been designed and written for ease of use by all.

If the justice system is to have any chance of delivering justice, then it must deliver justice for all.

I thank the Jumbunna Institute for Indigenous Education and Research, Distinguished Professor Larissa Behrendt AO and Professor Craig Longman for their expertise and leadership, Ms Michelle Toy, the project manager for this important project and each of the chapter authors for this outstanding contribution to the delivery of justice for all.

Tony McAvoy SC
Wirdi man and Barrister

This Bench Book includes Indigenous Cultural and Intellectual Property (ICIP). Where we have identified content that is to be considered Indigenous Cultural Intellectual Property, we have followed the relevant protocols and consulted with appropriate Indigenous people/communities about its inclusion in the Bench Book. ICIP rights are Indigenous heritage and will always remain with these groups. To use, adapt or reference the ICIP contained in this work, you will need to consult with the relevant Indigenous groups and follow cultural protocols.

The National Bench Book on Aboriginal and Torres Strait Islander Peoples and the Legal System contains information prepared and collated by the Jumbunna Institute for Indigenous Education and Research at the University of Technology, Sydney (Jumbunna) at the request of The Australasian Institute of Judicial Administration Limited (AIJA).

The AIJA and the Jumbunna Institute do not warrant or represent that the information contained within this publication is free from errors or omissions. This Bench Book is considered to be correct as at the date of publication, however changes in circumstances after the time of issue may impact the accuracy and reliability of the information within.

The AIJA and the Jumbunna Institute recognise the authority, rights and responsibilities belonging to Aboriginal and Torres Strait Islander peoples and communities who are the experts in their lived experiences. We specifically acknowledge the strength and resilience of First Nations peoples and communities who continue to uphold cultural authority, self-determination and truth-telling, and lead, speak, and act for justice.

This Bench Book is not and cannot be an authoritative voice on Aboriginal and Torres Strait Islander peoples’ experiences. This Bench book intends to enable a deeper understanding of, and bring to the forefront, critical evidence, issues, concerns and priorities relevant to Aboriginal and Torres Strait Islander peoples engaging with the Australian federal and state-based legal systems and laws.

The Australasian Institute of Judicial Administration Limited welcomes your feedback on how we can improve the National Bench Book on Aboriginal and Torres Strait Islander Peoples and the Legal System.

We are particularly interested in receiving relevant practice examples that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research materials.

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