DUAO - 2013 - Vol 38(3)

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Developments around the country

DownUnderAllOver is a round-up of legal news from both State and federal jurisdictions, and contains topical articles and short pieces from Alternative Law Journal committees around the country.

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WA government makes settlement 
offer to Noongar

Kate Galloway
Western Australia

The WA premier announced in early July that the government was offering the Noongar people a $1.3 billion offer to settle native title claims over Perth and the South West. The Noongar claim has spent years winding through the courts, resulting in an historic win in the Federal Court in Bennell v Western Australia [2006] FCA 1243. The court in that case found, amongst other things:

A major issue in the Single Noongar case was whether it can be said the present Noongar community continues to acknowledge and observe its traditional laws and customs concerning land. Undoubtedly, there have been changes in the land rules. It would have been impossible for it to be otherwise, given the devastating effect on the Noongars of dispossession from their land and other social changes. However, I have concluded that the contemporary Noongar community acknowledges and observes laws and customs relating to land which are a recognisable adaptation to their situation of the laws and customs existing at the date of settlement. In particular, contemporary Noongars continue to observe a system under which individuals obtain special rights over particular country – their boodjas – through their father or mother, or occasionally a grandparent. Those rights are generally recognised by other Noongars, who must obtain permission to access another person’s boodja for any traditional purpose. Present day Noongars also maintain the traditional rules as to who may ‘speak for’ particular country.

(2013) 38(3) AltLJ 198

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Mandatory detention to be extended

Kate Galloway
Western Australia

The Criminal Code Amendment Bill (No 2) 2013 was introduced into the WA parliament on 26 June. The Bill will establish mandatory sentencing for assault and bodily harm of youth custodial officers. The Attorney General describes the bill as fulfilling a pre-election commitment to protect youth custodial officers in the same way as for police, prison officers, ambulance officers, transit guards and court security officers.

(2013) 38(3) AltLJ 198

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Children’s rights in the parens patriae jurisdiction

Gudrun Dewey
Victoria

In the case of Re Beth [2013] VSC 189 (23 April 2013), the Victorian Secretary to the Department of Human Services applied to the Supreme Court for orders enabling the Secretary to place Beth (a pseudonym) in a purpose-renovated secure and lockable house staffed with 2:1 carer support for Beth’s care and protection.

Beth is a 16-year-old girl with intellectual disabilities who has suffered significant sexual abuse. The Secretary has guardianship and custody of Beth pursuant to a protection order made under the Children, Youth and Families Act 2005 (Vic). The Victorian Secretary has been Beth’s guardian since she was 
4 years old, Beth being removed from the care of her parents by Queensland authorities when she was an infant.

(2013) 38(3) AltLJ 197

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Victorian Charter of Rights and sentencing

Bronwyn Naylor
Victoria

Harsh prison conditions while on remand were taken into account as a factor in sentencing in the Victorian County Court, with particular reference to the Victorian Charter of Human Rights and Responsibilities Act 2006.  

Police in Victoria had been monitoring ‘Middle Eastern’ crime gangs, including family feuds which had included a house bombing and drive-by shootings during 2011. Three men from one of the families involved in these feuds, the Tiba family, were arrested in relation to drug dealings in July 2011. The three men were held on remand in high security units in Port Phillip and Barwon Prisons. The cases finally came on for hearing in June 2013, with guilty pleas from the three men to offences including armed robbery and car theft.

(2013) 38(3) AltLJ 197

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Tasmanian Forest Agreement Act

Benedict Bartl and Noelle Rattray
Tasmania

The forests in Tasmania have divided the community for many years. Industry leaders and environmentalists have been called on for decades to find a long lasting solution and it appears that one has finally been found. Signatories including major environmental non-government organisations and forest industry bodies signed off on a compromise late last year.

(2013) 38(3) AltLJ 197

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