Indigenous Legal Issues | Gilbert + Tobin Centre of Public Law

This page contains downloadable articles, presentations, media comment etc produced by Centre staff on Indigenous legal issues. A full list of publications by the Project Director, Sean Brennan can be found here.

For an invaluable, fully searchable online library of primary documents including parliamentary papers, test case materials, government reports and community advocacy from 1768 to the present day, see the Indigenous Law Resources database built by the Indigenous Law Centre and AustLII.

Constitutional Change

In light of the referendum proposed to be held by 2013, the Centre has prepared a specific resource page on the debate over constitutional changes relevant to Aboriginal and Torres Strait Islander people.

Opinion piece about the need to dispel myths concerning a non-discrimination clause and the Panel’s recommendations to government for constitutional change (17 February 2012).
Written by Sean Brennan and published in the Age

Article about the relationship between constitutional change and land justice (November 2011).
Written by Sean Brennan and published in the AIATSIS Native Title Issues Paper series.

Centre submission to the Expert Panel on Constitutional Recognition of Indigenous Australians (30 September 2011).
Written by Project Director Sean Brennan. Recommends a package of five changes and discusses the relationship between a non-discrimination clause and a power to make national laws which are Indigenous-specific.

Opinion piece about the rare chance for positive constitutional change regarding Aboriginal and Torres Strait Islander people, brought about by the inconclusive result of the 2010 election and the commitment to hold a referendum by 2013 (12 August 2011).
Written by Project Director Sean Brennan and published in Lawyers Weekly.

Centre submission on Indigenous legal issues to the National Human Rights Consultation Committee (15 June 2009).

Audio of Panel Session on Australian Constitutional Futures, from the Centre’s 2009 Constitutional Law Conference (20 February 2009).
Compered by ABC Radio’s Damien Carrick, the panel includes the Hon Ian Callinan, Mark Dreyfus QC MP, Professor Helen Irving and Project Director Sean Brennan.

Opinion piece about John Howard’s proposal for a constitutional preamble acknowledging Indigenous people (October 2007).
Written by Project Director Sean Brennan and published in Online Opinion.

Land Rights and Native Title

Article analysing Australian native title extinguishment law and the preferability of a suppression or regulation approach (March 2014).
Written by Sean Brennan and published in the Public Law Review, Vol 25(1),2014.

Centre podcast about the High Court decision in Western Australia v Brown finding that a mining lease did not extinguish native title (March 2014)

‘Opinion piece on the High Court’s third native title decision in seven months and the message governments should take from it: stop their incessant quest for extinguishment (14 March 2014).’
Written by Sean Brennan and published in The Australian.

Article discussing the significance for native title law of the Torres Strait regional sea claim, the subject of a High Court appeal in 2013.
Written by Sean Brennan and published in the Indigenous Law Bulletin, Vol 8(2), 2012.

Article examining the implications for native title of recent High Court cases concerning just terms for the acquisition of property, where the expropriation is carried out by a State but pursuant to an intergovernmental arrangement with the Commonwealth.'
Written by Sean Brennan and published in the Australian Indigenous Law Review, Vol 15(2), 2011.

Opinion piece about proposed amendments to the Native Title Act announced by Attorney-General Nicola Roxon (14 June 2012).
Written by Sean Brennan and published in Inside Story.

Article reviewing four recent land rights and native title High Court cases and the longer range judicial development of Australian law on Indigenous property rights, with a focus on the High Court’s approach to statutory interpretation and how it has unnecessarily diminished those rights (December 2010).
Written by Sean Brennan and published in Public Law Review, Vol 21(4), 2010.

Article addressing the way federalist preoccupations long subordinated the rights of Territorians, how the Wurridjal decision of the High Court reflects a more integrationist perspective on the Constitution and why Aboriginal rights, including property rights, remain vulnerable (August 2010).
Written by Sean Brennan and published in City University of Hong Kong Law Review, Vol 2(1), 2010.

Article analysing the High Court judgment in Wurridjal, which involved a constitutional challenge to the imposition of a five year lease over Maningrida as part of the Commonwealth’s Intervention in Northern Territory Aboriginal communities (October 2009).
Written by Sean Brennan and published in Melbourne University Law Review, Vol 33(3), 2009.

Article describing the vulnerability of Aboriginal land to compulsory acquisition for the enrichment of private interests as opposed to public purposes (February 2009).
Written by Sean Brennan and published in Reform, the journal of the Australian Law Reform Commission, Issue 93.

Article analysing the reasoning and implications from the High Court decision in Griffiths, concerning the compulsory acquisition of native title land (September 2008).
Written by Sean Brennan and published in Public Law Review, Vol 19(3), 2008.

Article discussing the reasoning and consequences from the High Court decision in the Blue Mud Bay case, about fishing by non-Aboriginal people in the intertidal zone of Aboriginal land (August 2008).
Written by Sean Brennan and published in Indigenous Law Bulletin, Vol 7(7), 2008.

Audio and transcript of The Law Report (ABC Radio) about compulsory acquisition of native title land in the Northern Territory for private use by a third party (May 2008).
Includes interviews with Project Director Sean Brennan and Principal Legal Officer for the Northern Land Council Ron Levy, regarding the High Court decision in Griffiths v NT Minister for Lands, Planning and Environment [2008] HCA 20.

Article about High Court litigation over fishing on coastal waters within the boundaries of Aboriginal land in the Northern Territory (January 2008).
Written by Sean Brennan and Peta MacGillivray and published in the Indigenous Law Bulletin Volume 7(2).

Presentation on recent developments in native title case law (June 2007).
Delivered by Sean Brennan at a Human Rights and Equal Opportunity Commission seminar in Sydney.
Focuses on Federal Court trial and appeal decisions since the Yorta Yorta High Court decision in December 2002.

Article discussing 2006 changes to the Aboriginal Land Rights Act in the Northern Territory and their impact on Land Council power, communal ownership and economic development (December 2006).
Written by Project Director Sean Brennan and published in the Australian Indigenous Law Reporter

Opinion piece about the Noongar achieving Federal Court recognition as native title holders for the Perth metropolitan area (25 September 2006).
Written by Project Director Sean Brennan and published in the Age. A copy of the judgment by Justice Wilcox of the Federal Court can be found here.'

Centre report on parliamentary consideration of Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 (11 September 2006).
Explanation of amendments accepted and rejected, as well as main points of debate.

Opinion piece: Land Rights Changes Need Injection of Common Sense (8 August 2006).
Written by Project Director Sean Brennan and published in the Age. Discusses proposed Commonwealth amendments to the Northern Territory land rights legislation.

Centre Submission to Senate Community Affairs Committee Inquiry into Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 (July 2006).
Addresses the Commonwealth Government's dramatic changes to the high water mark land rights legislation in Australia. Other submissions, transcript of public hearing and the final report can be found here.

Regulation of Alcohol and Substance Abuse

Centre submission to the Senate inquiry into the Low Aromatic Fuel Bill (24 July 2012)
Written by Project Director Sean Brennan. Assesses legal soundness and constitutional validity and proposes extension to constitutional basis for Bill.

Centre submission to House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Inquiry into the High Level of Involvement of Indigenous Juveniles and Young Adults in the Criminal Justice System (28 May 2010).
Written by Project Director Sean Brennan. Points out the attractions of a single national law for regulating the supply of unleaded fuel in the areas where petrol sniffing is a risk.

Centre submission to the Senate Community Affairs Reference Committee inquiry into petrol sniffing and substance abuse in Central Australia (27 October 2008).
Written by Project Director Sean Brennan and Centre Intern Jonathan Dillon. Confirms the constitutional capacity of the Commonwealth to legislate for the mandatory replacement of standard unleaded fuel with low aromatic or non-sniffable petrol.

Governance

Article discussing a constitutional framework for Indigenous governance (September 2006).
Written by Centre Associate Alex Reilly and published in the Sydney Law Review. Calls for a conceptual shift towards explicit recognition of Indigenous governance in the formal institutions of the Australian state.

Voting Rights

ABC TV's Message Stick program about new restrictions on enrolment and the right to vote in federal elections, and their impact on Indigenous people (March 2007).
Includes contributions by Social Justice Commissioner Tom Calma, Lance Macdonald (Chairman of Papunya), Sean Brennan, Gary Nairn (Special Minister of State), Warren Snowdon (Federal MP for Lingiari), Phil Diak (Australian Electoral Commission) and Simon Sheikh (United Nations Youth Association of Australia).

Commonwealth Intervention on Aboriginal Communities in the Northern Territory

Centre submission to the Northern Territory Emergency Response Review Board on measures taken under the Commonwealth Intervention in remote NT Aboriginal communities (22 August 2008).
Authored by Sean Brennan and based on the work of a small team of researchers since late 2007. Deals with alcohol restrictions, income management and compulsory five-year leases.

Centre Supplementary Submission on compulsory acquisition of Aboriginal property rights for Senate Legal and Constitutional Committee inquiry into Commonwealth intervention on Aboriginal communities in the Northern Territory (August 2007).
Written by Project Director Sean Brennan, Centre Intern Talia Epstein and Senior Research Director Edwina MacDonald. Singles out one aspect of this very large legislative package, the compulsory acquisition of Aboriginal property rights and the unfair way in which the compensation consequences have been addressed.

Fact sheet on Income Management introduced as part of the Northern Territory Intervention (March 2008).
Prepared by research assistant Matthew Butt, Centre Intern Jemma Hollonds and Project Director Sean Brennan.

Evaluation Sheet on Income Management introduced as part of the Northern Territory Intervention (March 2008).
Prepared by research assistant Matthew Butt, Centre Intern Jemma Hollonds and Project Director Sean Brennan.

Fact Sheet on Community Stores introduced as part of the Northern Territory Intervention (March 2008).
Prepared by Centre Intern Talia Epstein and Project Director Sean Brennan.