Dziedzic, Anna --- "Indigenous Legal Relations in Australia, by Larissa Behrendt, Chris Cunneen and Terri Libesman" [2009] ALRCRefJl 49; (2009) 94 Australian Law Reform Commission Reform Journal 69

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Indigenous Legal Relations in Australia

By Larissa Behrendt, Chris Cunneen and Terri Libesman

Reviewed by Anna Dziedzic

Indigenous Legal Relations in Australia discusses how key legal issues faced by Indigenous peoples are informed by the social and historical context of the dispossession, discrimination and disadvantage experienced by Indigenous peoples.

Written by legal academics and aimed primarily at law students, the book is a good overview of a range of legal issues that affect Indigenous peoples. The legal issues are bound together by common themes of history, racial discrimination, and the political struggle for recognition and self-determination. In some cases, international human rights principles and comparative law are used to discuss alternative approaches to legal problems.

The book is divided into four parts. The first part, ‘Law of the Colonisers’, examines how the past legal and social treatment of Indigenous peoples has affected their legal rights today. Past injustices such as the forced removal of children, stolen wages and assimilation are linked to current issues relating to poverty, criminalisation and child welfare.

The second part, ‘Equality before the Law: Criminalisation’, examines the disproportionate impact that the justice system has on Indigenous peoples. The authors present a holistic overview of Indigenous peoples’ contact with the criminal justice system, including discretions in policing, bail and sentencing, to interrogate why Indigenous peoples are grossly overrepresented in Australian prisons and the criminal justice system.

The importance of land rights to Indigenous peoples, and the political and legal struggles for recognition of those rights, are discussed in part three, ‘Law, Land and Culture’. This part also includes a chapter by Robynne Quiggin, which discusses the inadequacy of western intellectual property law to protect Indigenous cultural heritage.

Finally, part four, ‘Law, Rights and Governance’, provides an overview of Commonwealth racial discrimination legislation and also discusses the drive for constitutional change and a treaty (or progressive treaty making) to recognise Indigenous peoples, and the use of these rights to deliver practical outcomes. This section also takes a critical look at the issue of self-determination in the context of Indigenous peoples’ aspiration for self-governance and decision-making power.

Indigenous Legal Relations in Australia is designed to be an introduction to the legal issues facing Indigenous Australians. Each chapter includes discussion questions and case studies to provoke critical refl ection on options for social and legal change. However, it is not a ‘cases and materials’ textbook. Rather, Indigenous Legal Relations in Australia identifi es and discusses issues in a general way without necessarily providing a comprehensive overview, or extracts, of the law. While the case studies note the content and signifi cance of a number of court cases, students will need to look to primary sources such as legislation, case law and parliamentary and historical documents to gain a comprehensive understanding of particular legal issues.

In this context, the main strength of Indigenous Legal Relations in Australia is its examination of the way that law and legal institutions form part of the broader social experiences that shape the everyday lives of Indigenous peoples. So, for example, the discussion of the overrepresentation of Indigenous children in child welfare not only covers family and welfare laws, but looks at the effects of paternalism and interference by the state with Indigenous families, the intergenerational effects of the stolen generations and poverty, and considers the importance of Indigenous selfdetermination and community development in solving these issues. This approach informs the view that the law alone cannot solve the legal and social problems facing Indigenous peoples, and that perhaps the best answers to these issues lie beyond the legal arena.

The book has been written during what is hoped to be a time of change in Indigenous legal relations in Australia. The federal Government’s apology to the stolen generations, endorsement of the United Nations Declaration of the Rights of Indigenous People and consultation on a new representative body perhaps signal a renewed interest in relationships between Indigenous and non-Indigenous Australians. However, Indigenous Legal Relations in Australia highlights the legal and social issues that continue to contribute to Indigenous disadvantage in Australia. As such it is a good introduction for anyone wishing to understand the legal, social and historical factors that infl uence Indigenous peoples’ experiences of the law in Australia.

Anna Dziedzic, ALRC Legal Offi cer