Equality before the Law Bench Book update 20 published

Section 2, formerly “Aboriginal people” has been renamed “First Nations people”. The following additional changes have been made in this update:

Section 2 — First Nations people

Information has been updated at 2.1 Some statistics including projections for the increase in the number of First Nations children in care in 2030 and the additional disadvantages borne by the Stolen Generations survivors and their descendants when compared with other First Nations peoples (see Care and protection).

New research by the Australian Institute of Health and Welfare regarding outcomes for First Nations children under 15 who lived in the same house as a member of the Stolen Generation and the intergenerational effects of removal from family that occurred for the Stolen Generations up to 1970 has been included at 2.2.2 Intergenerational/transgenerational trauma. Also included in this chapter is a reference to the Yoorrook Justice Commission, which commenced hearing evidence in March 2022 and will make a formal record of two centuries of colonisation and oppression in Victoria.

A new section on The cultural importance of Aboriginal and Torres Strait Islander languages has been added at 2.2.4. This follows the enactment of the Aboriginal Languages Act 2017 (NSW), with the aim of addressing the loss of many of Australia’s First Nations’ languages.

Lacey (a pseudonym) v Attorney General for NSW [2021] NSWCA 27, regarding whether a Local Court or Children’s Court has power to order a hearing before a female magistrate has been added at 2.2.6 The possible impact of these cultural difference in court.

A new section on the Walama List Sentencing Procedure pilot operating in the NSW District Court commencing 31 January 2022 has been added at 2.2.8 The Walama List in the District Court. Another new section has been added at 2.2.9 Protocol for dealing with inquiries into deaths of First Nations people, following Recommendation 8 of the final Report of the Royal Commission into Aboriginal Deaths in Custody.

The case of Milson v Milson [2020] NSWSC 919, discussing the wishes of a deceased to be cremated and the deceased’s mother’s wishes that the deceased be buried on country has been added at 2.3.5 First Nations burial rights.

A new section has been added at 2.3.6 Adoption proceedings, which discusses the Adoption Act 2000 and the requirements that the Supreme Court of NSW apply the Aboriginal and Torres Strait Islander Child Placement Principles, specified in ss 35 and 39, in making an adoption order if the child the subject of the order is an “Aboriginal child” or “Torres Strait Islander child” (defined in s 4).

Hoskins v R [2021] NSWCCA 169 and the Report, “The significance of culture to wellbeing, healing and rehabilitation” (2021) by Vanessa Edwige and Dr Paul Gray have been added at 2.3.10 After Fernando.