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This subject considers the judicial review of Indigenous decision-makers from a comparative perspective. Legal pluralism constitutes one of the most fascinating and complex challenges for contemporary common law jurisdictions.
We will explore key cases, theories of judicial review and legal pluralism, and work by leading Indigenous scholars to deepen knowledge. The subject should be of considerable interest to Australian and international students from all regions of the world with interests in public, comparative, international, and Indigenous laws.
Judicial review of Indigenous decision makers and norms represents a key nexus between Indigenous and settler legal orders. New and innovative legal developments are unfolding quickly and law students need a specialised background to understand and manage this complexity. This background includes Aboriginal/Indigenous law, administrative and constitutional law, international law, and the ability to draw on comparative analyses from multiple jurisdictions such as Australia, Canada, New Zealand, South Africa, and the United States.
Issues to be explored include: the treatment of Indigenous decisions and laws at judicial review; jurisdictional conflicts between Indigenous and settler legal orders; and, new legal developments representing a nexus between Indigenous and non-Indigenous laws.
Principal topics are likely to include:
- The theory and practice of legal pluralism
- Comparative perspectives on the ways in which Indigenous law is recognised and practised in selected jurisdictions.
- Recognition of Indigenous laws and legal orders by different state institutions, particularly by appellate courts at judicial review.
- Special topics and contributions including: self-governance and nation-building; differing approaches to the judicial review of Indigenous decision makers and law; the import of public law principles of deference, honour, and respect; and, innovative legal and political remedies.
Intended learning outcomes
A student who has successfully completed this subject should be able to:
- Critically appraise the history, theoretical foundations, legal frameworks, and practictical applications of judicial review in relation to Indigenous people
- Interpret and evaluate how the legal principles and mechanisms that structure Indigenous peoples' legal systems and experiences are manifested at judicial review
- Critically examine and assess the effectiveness and application of the legal principles and mechanisms underpinning Indigenous legal systems in the context of judicial review.
- Investigate and critically analyse both existing and emerging legal issues relating to the interaction of Indigenous and settler laws across selected jurisdictions
- Effectively debate and defend arguments around Indigenous law and legal systems to specialist and non-specialist audiences, and to contribute to constructive public and scholarly discourses on the challenges of legal pluralism and the recognition of Indigenous laws in settler states
- Demonstrate expertise in researching legal pluralism in settler states and apply advanced comparative public law research methods, particularly in Indigenous judicial review.
- Demonstrate a conceptual and analytical grasp of the legal interplay between settler constitutional systems and Indigenous legal orders across selected jurisdictions.
- Show a deep appreciation of the evolution of public law constructs over time, coupled with an innovative approach to addressing multifaceted challenges within public law that encompass Indigenous decision-making processes and legal orders.
- Utilise advanced reflective skills, encompassing high-caliber analysis, critical introspection, and the generation and articulation of impactful legal reform propositions grounded in theoretical knowledge and empirical understanding of the law's operational dynamics.
Last updated: 10 November 2023