Judicial Review and Indigenous Peoples (LAWS90276)

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.