IALL 2019 Recap: Australian Indigenous Peoples and the Law

By Meredith Capps

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The panel at the Australian Indigenous Peoples and the Law program at IALL 2019.

On Monday, October 28th at 11:00 a.m., Thalia Anthony of the University of Technology, Sydney began the panel with her presentation titled Colonial Legal Histories and Indigenous Sovereignty.  Anthony described the concept of legal hybridity, and the historic tension between colonial jurisdiction and indigenous sovereignty.  She discussed the notion of ngurra-kurla embraced by the Warlpiri people, a philosophy embodying core elements of law land, law, language, skin, and ceremony, and how the Warlpiri utilize both compensation and shaming as punishment.  Recent policing of Warlpiri sacred sites in violation of its indigenous law provides an example of typical modern-day intracultural and intralegal conflicts.

Anthony discussed several significant Australian cases dealing with indigenous sovereignty, including:

  • R v Murrell (1836)–the Supreme Court of New South Wales (NSW) ruled that indigenous people are not “law-bearing people,” indigenous inhabitants subject to universal Anglo-Australian law;
  • Milirrpum v Nabalco & Cth (1971)–Supreme Court of the Northern Territories rejected a claim of native title;
  • Mabo v Queensland (No 2) (1992)–landmark decision of the High Court of Australia overturning Milirrpum, for the first time recognizing native title;
  • Walker v NSW (1994)–the High Court of Australia found that the legislature may pass general criminal statutes applicable to all persons;
  • Binge v Bennett (1988) & R v Buzzacott (2004)–NSW Supreme Court and Australian Capital Territory Supreme Courts dismissed concerns of racial bias in jury selection.

Anthony then discussed Australia’s incarceration of indigenous people, the most incarcerated group in the world.  Indigenous women currently represent Australia’s fastest-growing prison demographic.  Anthony characterized efforts to forcibly displace indigenous persons during the 18th century as “palliative carceralism” while in the 19th century, Australian authorities engaged in “protective carceralism,” asserting control over indigenous populations through missions and settlement.  Such efforts evolved into what Anthony characterizes as “welfare carceralism” and “penal carceralism.”  Indigenous communities are subject to a high level of policing on the streets, and greater levels of criminalization at each stage of the justice system (arrest, prosecution, and bail).  Indigenous young people are more likely to experience abuses such as torture while in police detention.  Despite efforts by the 1991 Royal Commission into Aboriginal Deaths in Custody, indigenous persons die at increasing rates while in police custody.  Anthony reemphasized that indigenous communities do not utilize prison as punishment, and highlighted the need for a hybrid domain embracing initiatives such as community courts and community justice reports.

In Protecting Indigenous Cultural Property, attorney Terri Janke described intellectual property protections for indigenous land, documentation, arts, and language.  She discussed international protocols such as the Negoya Protocol, WIPO provisions regarding traditional cultural expressions, and the UN Declaration on the Rights of Indigenous People, which assert rights, but these rights do not automatically translate into domestic statutory law in Australia. Janke highlighted challenges common to protecting cultural history in different spheres.  Copyright, for example, does not protect content such as oral history, which does not exist in a fixed format.  In the patent realm, co-sharing agreements can provide a mechanism for protecting indigenous knowledge in medicinal use of plants.  Janke discussed a few notable cases dealing with indigenous cultural property, including Milpurrurru v Indofurn, in which indigenous artists prevailed in a copyright suit involving use of their art in woven carpets, Bulu v R&T Textiles, rejecting the idea of communal ownership of copyright but finding that the artist owed a duty to the indigenous group whose work he represented, and ACCC v Birubi Art Pty Ltd, penalizing Birubi for sale of fake indigenous art in souvenirs.

Finally, Magistrate Sue Duncombe presented NSW Circle Sentencing and the NSW Youth Koori Court.  59% of the juvenile detention population is indigenous, and the Youth Koori Court, awarded a $2.7 million, three-year government grant, hopes to address this imbalance.  Its goal is not necessarily to reduce recidivism, but to reduce risk factors for offending, and though some participants have reoffended, many participants now live independently, obtain employment, and maintain custody of children. Juvenile offenders accepted in the program will engage in a suitability exercise where they learn program expectations, including developing of their own action and support plans, and compliance with monitoring and reporting procedures.  At sentencing, punishments may not exceed those the youth would receive in the criminal justice system, and staff acknowledge and incentivize progress.

IALL 2019 Recap: Pre-Conference Workshop–An Introduction to the Australian Legal System and Legal Research

By David Isom

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Larissa Reid and Fiona MacDowall present at the IALL Pre-Conference Workshop

This year’s IALL Annual Course Pre-Conference Workshop was titled “An Introduction to the Australian Legal System and Legal Research.” Held at the Parliament House of New South Wales on Sunday, October 27, the workshop was presented by Larissa Reid, Reader Services Manager at the New South Wales Law Courts Library of Sydney, and Fiona MacDowall, co-editor of the Australian Law Librarian. The workshop was as an excellent introduction to the law of Australia and a very helpful preparation for the sessions that followed. While I can’t do justice to the breadth and depth of their presentation in a summary of this kind, I have chosen to highlight those topics which I—as a non-Australian with little familiarity with the country’s history and legal system—found particularly valuable.

Reid and MacDowall began the workshop with an introduction to the Australian system of government and legal system. Australia remains a constitutional monarchy whose head of state is Queen Elizabeth II, represented locally by the Governor-General (currently David Hurley). It is a federal parliamentary democracy with a written constitution which took effect in 1901. Vast in area (just under three million square miles) but relatively small in population (slightly more than 25 million residents as of 2019), it consists of six states and two self-governing territories (as well as seven external territories and the Jervis Bay Territory).

The British colonizers of Australia applied the doctrine of terra nullius (“land belonging to no one”) to the land they settled—disregarding the Aboriginal peoples and their customary legal traditions—and established English law in Australia, making it a common law jurisdiction. Formal reception of English law began in 1828 in New South Wales (which then included what are now Queensland and Victoria) and Tasmania with the Australian Courts Act 1828 and continued in additional states and territories through 1911. After reception, any subsequent English legislation is inapplicable (though English common law was not fixed at such time). After reception, the Australian colonies had the authority to enact legislation of their own provided that it was not “repugnant” to the laws of England (under the Colonial Laws Validity Act 1865).

The passage of the Commonwealth of Australia Constitution Act 1900 joined the six Australian colonies as “one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland.” Organized into eight parts, the Constitution establishes three branches of government: a Parliament (consisting of a House of Representatives and a Senate), the Judiciary, and the Executive Government. The Constitution gives Parliament the power to legislate in enumerated areas (including but not limited to defense; interstate and international trade; taxation; marriage and divorce; immigration; and bankruptcy); the states have power to make laws in all other areas. While it contains no bill of rights, the Constitution explicitly mentions five individual rights: the right to vote; protection against the Commonwealth’s acquisition of a person’s (or State’s) property on unjust terms; the right to a jury trial; freedom of religion; and a prohibition of discrimination based on a person’s state of residency. Amending the Constitution requires approval from Parliament and a nationwide referendum (which requires a “double majority”—approval of a majority of voters nationwide, as well as a majority of voters in a majority of states).

Australia has both Commonwealth courts and state/territory courts; the court of last resort for both is the High Court of Australia. For Commonwealth courts, the principal intermediate courts are the Federal Court and the Family Court, and the trial courts are the Federal Circuit Courts. States and territories have Supreme Courts; beneath them are the District or County intermediate courts and Local or Magistrates trial courts.

Two major free resources for finding legislation across all Australian jurisdictions are Lawlex and AustLII. Government websites (both for the Commonwealth of Australia and for individual states and territories) are also important free resources; for the Commonwealth, the websites for the Federal Register of Legislation (for texts of legislation and government gazettes) and the Australian Parliament (for bills, explanatory memoranda, texts of parliamentary debates, and committee reports) are particularly useful. For caselaw, AustLII and the partly-free/partly-paid platform Jade both include judgments from courts, tribunals, and commissions, as well as citators. Court websites (both for the Commonwealth and for individual states and territories) are also useful sources of the texts of judgments; for Commonwealth courts, see the websites for the High Court of Australia, the Federal Court, and the Family Court.

Legally significant decisions are published in law reports; the most authoritative are those officially selected as authorized law reports, which exist for both the Commonwealth and individual states and territories. For the High Court, the authorized report series is Commonwealth Law Reports (CLR), available in part on AustLII and Jade and in full on Westlaw AU. The authorized report series for the Federal Court is Federal Court Reports (FCR), available on Westlaw AU. Access to authorized reports for states and territories varies; some are available at no charge via AustLII, while others are only available via Westlaw AU or Lexis Advance Australia.

A wide range of secondary sources specific to Australian law (including encyclopedias, dictionaries, looseleaf services, and textbooks) are available, though many are exclusive to Westlaw AU or Lexis Advance Australia. Useful free secondary sources include Trove (a service of the National Library of Australia, which includes archived government websites and gazettes as well as non-law materials); the Monash University guide to legal abbreviations; the Australian Guide to Legal Citation, available as a free PDF from the University of Melbourne; and the Australian Legal Scholarship Library, available on AustLII.

Second Call for IALL 2019 Bloggers

sydneyAre you heading down under for IALL 2019 in Sydney?  We’re still looking for bloggers to recap some of the program for the blog.  We’re had a few volunteers, but are looking for a few more, particularly for the following sessions, but are happy to have coverage of any session you’re planning on attending:

Monday, October 28th
9:45-10:30am:  Keynote: Australia’s Legal History & Colonial Legacy

Tuesday, October 29th
9:30-10:15am:  Australia’s Constitutional Quirks
10:15-11:00am:  International Law in Australia

Wednesday, October 30th
9:30-10:15am:  Contemporary Challenges to Open Justice: Law, Technology, and Culture
1:45-2:30pm:  International Environmental Law in Australia
2:30-3:15pm:  Criminal Law in Australia

If you are willing and able to recap one of these sessions or any other program from IALL 2019, please email Alyson Drake at alyson.drake@ttu.edu or Jessica Pierucci at jpierucci@law.uci.edu.

Call for Bloggers: IALL 2019

volunteerAre you heading down under for IALL 2019 in Sydney?  We’d love to have some recaps of the program for the blog.  We’re particularly interested in the following sessions, but are happy to have coverage of any session you’re planning on attending:
Sunday, October 27th
1:30-4:30pm:  Pre-Conference Workshop:  An Introduction to the Australian Legal System and Legal Research

Monday, October 28th
9:45-10:30am:  Keynote: Australia’s Legal History & Colonial Legacy
11:00–12:30pm:  Australia Indigenous People and the Law

Tuesday, October 29th
9:30-10:15am:  Australia’s Constitutional Quirks
10:15-11:00am:  International Law in Australia
11:30-12:15pm:  Refugee Law in Australia

Wednesday, October 30th
9:30-10:15am:  Contemporary Challenges to Open Justice: Law, Technology, and Culture
1:45-2:30pm:  International Environmental Law in Austrlia
2:30-3:15pm:  Criminal Law in Australia

If you are willing and able to recap one of these sessions or any other program from IALL 2019, please email Alyson Drake at alyson.drake@ttu.edu or Jessica Pierucci at jpierucci@law.uci.edu.

The 2020 Call for Programming Proposals is Open Now!

By Susan Gualtier

The AALL Annual Meeting Program Proposal site is now open!

Remember all of that brainstorming and up-voting you did during the Ideascale phase of program development for the 2020 AALL Annual Conference?  Well, it paid off!  The AMPC has published its list of must-have program topics and there are a number that incorporate the FCIL perspective. For example:

  • Under the Professionalism + Leadership at every level category: Cultural and Identity Awareness and Competencies and Globalization Demands Approaches That Include Foreign, Comparative, and International Perspectives
  • Under the Research + Analysis category: Civil Law Research (including legislative processes, tools, influences on civil law, and Louisiana/New Orleans research)
  • Under the Teaching + Training category: Assisting non-JD Patrons

The AMPC has given us the opportunity to incorporate FCIL programming into almost every category of must-have programming for the New Orleans conference.  We cannot waste this opportunity!

I urge each of you to contact me (sgua@law.upenn.edu) and Dennis Sears (searsd@law.byu.edu) and tell us what you are willing and able to do to help us transform all of the ideas listed above and on Ideascale into actual programs.  We need your help!  We are also available to help you when it comes to navigating the proposal site and developing your programs.  As co-Chairs of the FCIL-SIS Education Committee, it is our job to encourage and support you in developing ideas and program proposals in anticipation of next year’s meeting.

Congratulations on a job well done so far, and we look forward to hearing from you during the proposal process!

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AALL 2019 Recap: FCIL Basics Bootcamp

By Dinah Minkoff

bootcamp.JPGI had the opportunity to attend the Preconference Workshop: FCIL Bootcamp: Basic Training at Georgetown University’s law school.  The morning session promised to provide information on FCIL resources and how to use them with a focus on foreign law, treaties, and EU law.  It delivered on its promise.  Georgetown Law librarians Mabel Shaw, Charles Bjok, and Heather Casey presented.

Mabel Shaw presented “An Introduction to Foreign Legal Research.”  She has been an FCIL librarian at Georgetown, where she is now the Head of International & Foreign Law, for over 18 years.  The presentation began by breaking down the different legal systems intrepid researchers will encounter: Common, Civil, Religious, Customary, and Mixed. As a researcher you need to know what type of legal system you are researching so that you understand not just where to look for information but if that information exists.  Interesting point of fact: outside of the U.S., not all government information is copyright free.  During her presentation, Mabel also allayed a common concern of the foreign legal researcher: you don’t have to speak every language you are researching. In addition to translations of legislation and law, there are myriad translation tools out there like dictionaries and Google Translate.  Use your evaluation skills to determine the reliability of the translation itself.  Look to the date of translation, the site hosting the translation, and whether it was done by a person or AI.

Heather Casey presented “An Introduction to Treaty Research.”  She has been an FCIL librarian for 10 years and teaches Research Skills in International & Comparative Law with Charles Bjork.  Heather’s presentation began by explaining the differences between private and public international law and the various documents that are referred to under the broad category of “treaties” (e.g. conventions, protocols, accords, declarations, charters, and Memorandum of Understanding).  Heather then outlined the best places to begin your research when the U.S. is a party to the treaty (Spoiler Alert: Treaties in Force, the U.S. State Department’s website, and HeinOnline).   After an overview of the treaty ratification process, it was on to researching treaties when the U.S. is not a party.  Good places to search include Multilateral Treaties Deposited with the Secretary-General at the UN, Regional Treaty Collections, and Foreign Ministry websites.  The presentation also reviewed important websites to keep in mind when conducting treaty research such as the EU, Council of Europe, African Union, Organization of American States, and World Trade Organization.  And because we were inside a law school, the session wrapped up with a hypothetical where participants got to put their newly honed FCIL research skills to the test.

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Heather Casey presenting on how to conduct treaty research.

Finally, Charles Bjok presented on “An Introduction to Researching the Law of the European Union.” He works closely with Georgetown’s sizeable international LLM writing and research program and teaches Research Skills in International & Comparative Law with Heather Casey. This presentation had a two-fold benefit for me: it provided me a great refresher on the topic and confirmed for me that my own presentation on the topic did not have any glaring gaps.  The presentation began with an introduction to the EU, including a brief history, foundational documents, and its current incarnation. The presentation also reviewed the EU’s Seven Institutions and the hierarchy of EU law. What is fantastic about EU research is that despite the numerous institutions within the EU and its various types of law (treaties, legislative acts, and case law), EUR-Lex, the official website of the EU, is a portal to almost everything you will be looking for.  The website is updated daily, and contains some texts dating back to 1951.  The documents on EUR-Lex are freely accessible and available in the 24 official languages of the EU.  One caveat: although case law is available in on EUR-Lex, using CURIA, the CJEU’s website, may prove more beneficial.

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The full slate of speakers from the full day FCIL Bootcamp.  From left to right: Heather Casey, Georgetown University Law Library; Prof. Heidi Frostestad Kuehl, Northern Illinois University School of Law; Prof. Jennifer Hillman, Georgetown University Law Center; Mabel Shaw, Georgetown University Law Library; Prof. Lilian Faulhaber, Georgetown University Law Center; and Charles Bjork, Georgetown University Law Library.  

I left the morning session happily on information overload and energized to respond to the future FCIL questions I receive in my role as Global Law Librarian at LA Law Library.  Feel free to reach out with questions about the bootcamp or foreign law generally. I can be reached at dminkoff@lalawlibrary.org.

For insights into the wonderful resources shared by the speakers, please visit https://guides.ll.georgetown.edu/home/foreign-law.

For the afternoon session of the pre-conference workshop, FCIL Bootcamp: Advanced, see this recap.

AALL 2019 Recap: Locating Latin American Legal Sources

By David Isom

Moderated by Sarah Jaramillo, Reference Librarian for International and Foreign Law at NYU Law School, the “Locating Latin American Legal Sources” session on July 15, 2019 consisted of presentations from Jade Madrid, Latin American Studies & Iberian Languages Liaison & Reference Librarian at Georgetown University; Shana Wagger, Program Lead for Digital Projects and Repositories at the World Bank; and Francisco Macías, Head of the Iberia/Rio Office Section at the Law Library of Congress. Each discussed unique aspects of the Latin American materials available at their respective institutions.

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From left to right: Sarah Jaramillo, Jade Madrid, Shana Wagger, Francisco Macías.

Madrid began by noting various research guides on Latin American legal materials available at Georgetown and elsewhere. She also discussed the challenges that a researcher can encounter when attempting to locate sources of Latin American law: non-hispanophone/non-lusophone researchers may encounter difficulties when seeking primary sources, of course, but there can also be country-specific challenges. For example, while the Library of the National Congress of Chile includes coverage of Chilean law beginning in 1965, it has no coverage for the 17 years (1973–1990) under the dictatorship of General Augusto Pinochet. Madrid also mentioned several special collections related to Latin American law available at Georgetown: the papers of Colombian diplomat Tomás Herrán (many relating to the Hay–Herrán Treaty of 1903, which was ratified by the United States Senate but not by the Senate of Colombia); the papers of James Theberge, director of the Latin American and Hispanic Studies Center at Georgetown and United States Ambassador to Nicaragua and Chile; the papers of Panamanian educator, feminist leader, and diplomat Esther Neira de Calvo; and the Alliance for Progress Cartoon Book Program collection, which includes digital copies of comic books produced by the American anti-communist development program in Latin America established by President John F. Kennedy.

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Escuela de Traidores (School for Traitors), date unknown, from Georgetown’s Alliance for Progress Cartoon Book Program collection.

Wagger said that the World Bank’s open access program that publishes 90–110 books a year, primarily digitally. The program is intended to make information available to the decision-makers involved in development programs in order to support the World Bank’s broad mission of ending extreme poverty and promoting shared prosperity. Wagger explained that the World Bank produces four major types of resources: focused publications (such as the Doing Business series of national and regional economic profiles, the Latin American Development Forum series covering economic and social issues, and the World Bank Legal Review); electronic repositories (the Documents & Reports platform which includes more than 330,000 World Bank documents from 1946 to the present, the Open Knowledge Repository of almost 29,000 publications from roughly 2000 to the present, and the subscription World Bank eLibrary); the World Bank Open Data platform, which provides free access to various types of development-related information, including demographic, environmental, financial, and industry data; and other specialized resources such as the Projects & Operations website, the World Bank Group Archives, and the Access to Information portal.

Macías started his presentation by discussing the history of the Law Library of Congress’ collection of foreign law materials, which began in 1848 (in the aftermath of the Mexican-American War) when President James K. Polk ordered the Library to begin collecting materials concerning the law of Mexico. Since then, the Law Library of Congress has grown substantially, collecting the laws of more than 270 jurisdictions in more than 200 languages. Five foreign law specialists work in the unit which covers the laws of Spain, Portugal, Latin America, the Caribbean, and the Philippines. Electronic materials include country-specific research guides available in the Library’s Guide to Law Online and the In Custodia Legis blog—see, for example, this post on “Cinco de Mayo and the History of Mexican Codification.” One highlight of the Library’s Latin American materials is the Mexican Revolution and the United States exhibition, which includes historical newspaper articles, maps, photographs, and film footage.

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José Guadalupe Posada, Asalto de Zapatistas (Assault of the Zapatistas), 1910, from the Library of Congress’ Mexican Revolution and the United States exhibition.