The term ‘protection’ in Australia is closely associated with the practices and institutions of assimilation imposed upon Indigenous people through much of the twentieth century. These practices and institutions were backed by laws that granted state governments wide-ranging powers of control over Indigenous lives, purportedly for their own good. The multi-generational impacts of assimilative policies continue to resonate for Indigenous communities today. Yet apart from the legal regime of assimilation that defined Indigenous policy through the mid-twentieth century, protection has a longer and more complex history in Australia, as it does globally. This chapter traces Australia’s history of protection, from its nineteenth-century origins as a program designed to build Indigenous people’s status as British subjects, to its twentieth-century expressions as a legally-empowered system of state guardianship. While the history of protection is one of legal authority, it is also a history of Indigenous political action.

The state we now call Australia emerged through successive worlds. The old worlds did not disappear, but persist to this day. From time to time their unresolved legal contradictions burst into the present to pose radical challenges to the dominant legal order in the continent. This chapter retells the legal history of Australia through three successive worlds. The first world is the ancient history and unfinished business of inter-national relationships between First Nations, and between them and the settler state. The second world is the British Empire, a global state that aimed to impose a single legal order over its imperial jurisdictions. The third world is the international system of sovereign states that covers the globe today. If Australians have pursued a ‘rules-based order,’ this pursuit has always reflected their own conflicting desires for the liberation and domination of neighbouring peoples, lands and seas.

Australian land law can now only be viewed through the prism of Mabo’s reframing of the history of land law to include First Nations’ law within its purview and to bring it and the colonising land law into relation with each other. Thus Mabo (and Wik) provide the framework for this chapter. The arrival of a foreign, colonising power in 1788 disrupted the complex systems of First Nations’ land law that had covered the Australian continent for millenia. The baggage of English land law including the feudal doctrines of tenure and estates became the law of the land and operated to dispossess but could not destroy First Nations’ land law and relationships. By the mid nineteenth-century, unique and significant departures from English land law and feudal doctrines emerged, reflecting the particular social, economic and geographical environment of the colonies: for example, the creation of pastoral leases, development of Crown reserves, the regulation of mining by way of leases and licences distinct from the common law and the creation of the unique title by registration scheme by Robert Torrens. Mabo’s reassessment of this “peculiarly Australian land law freed the law of some of its common law feudal origins, particularly by redefining the nature of Crown title. Paradoxically it also reinstated the prominence of the doctrines of tenure and estates as the land law’s “skeleton of principle” which remains the major impediment to a truly Australian land law.

The economic and social welfare of people living in Australia has been shaped by different sets of laws: Indigenous laws that meant individual welfare was ensured by family and kin, British laws that decreed welfare a distinct domain for managing the casualties of a hierarchical social order, and a settler colonial adaptation of the British system in which the colonial state provided the infrastructure for growth. This chapter argues that while state investment worked in positive ways for settler economies, it acted as the motor of Indigenous dispossession – though Indigenous communities maintained customary law and adapted settler welfare for their own well-being. White women were marginalised in settler economies but feminist agitation focussed on state welfare as the source of reform. The last 30 years have seen social investment in retreat, though it was revived during the Global Financial crisis and against Covid-19. The early 21st century has also witnessed the increasing dissemination of Indigenous ideas of well-being. The histories of these enduring strands provide some clarity on how we might approach what some have argued is impending automation and a ‘post-work future’.

Since the 1960s, Australian law has responded to the dispossession of Indigenous peoples. Most States and Territories have land rights legislation. These schemes vary, for example in their reliance on claims processes, administrative transfer and statutory vesting for returning land into Indigenous hands. In general, they confer robust property rights (often freehold) and a strong say over mining and development. The concept of native title emerged from the common law decision of the High Court in Mabo v Queensland (No 2) in 1992 and is regulated by a complex federal statute. The capacity for native title to deliver on Indigenous expectations has been influenced by court decisions in key cases, about what groups must prove in order to win recognition, what rights they obtain, what rules apply to the extinguishment of native title and what constitutes ‘just terms’ for dispossession. Governments have also affected developments, as authors of policy and legislation, and as respondents to Indigenous claims in courts and tribunals. Achieving greater land justice from native title and statutory land rights will require governments to adopt a longer-term strategic focus that emphasizes Indigenous empowerment and self-determination.

This introductory chapter explains the origins, aspirations and purposes of the volume and introduces the various chapters.

Nicole Watson discusses the challenges faced by First Law and First Nations Scholars in Australian law schools. While a number of jurists have traced an outline of Indigenous Australian jurisprudence she notes that much work remains to be done to chart law and to find a place for it in Australian law schools. Likewise, though more and more Indigenous Australian scholars are enrolling in law schools, many did not complete their studies because legal education is isolating and colonising. Watson tentatively charts a way forward, engaging with John Borrow’s and Val Napoleon’s work in Canada, which seeks to draw out ‘principles of Indigenous law from stories’. This, Watson thinks, might provide a promising pathway: sharing of stories has the‘potential to create a bridge between Indigenous communities and legal scholars,’ breaking down the monologic nature of Australian legal education, and providing resources to bolster Aboriginal and Torres Strait Islander communities.

Chapters 9.1 (by Tim Rowse and Jennifer Green) and 9.2 (by Daryle Rigney, Denis Rose, Alison Vivian, Miriam Jorgensen, Steve Hemming and Shaun Berg) present case studies of past and present of Indigenous governance. In 9.1 Rowse and Green show that Arrernte jurisdiction has persisted in certain ways in Alice Springs/Mparntwe since the 1870s, notwithstanding the colonists’ expectation – at least until the reforms of ‘welfare colonialism’ in the 1970s – that ‘detribalisation’ was rapidly and inevitably extinguishing customary law. Their chapter outlines some episodes of recognition that have arisen from the overlapping of two systems of law in a space inhabited by both Arrernte and non-Arrernte people. The first example discussed is the acknowledgement and protection of sacred sites, and the second the decreasing accommodation of customary law within the criminal law. In 9.2 Rigney et al explore the experiences of two Aboriginal nations, the Gunditjmara People and the Ngarrindjeri Nation, asserting their status as distinct peoples and, in so doing, demonstrating their capacity to achieve their Indigenous Nation Building goals. While both face significant challenges in establishing Indigenous self-governing systems and accommodating them within the Australian federation, their intention to self-govern according to Gunditjmara and Ngarrindjeri norms is indisputable.

Mary Spiers Williams offers the reader a provocative invitation to reflect on the centring of State law and to critically engage with its impact on First Peoples and more broadly its facilitation of dispossession and its structural bias against First Peoples in Australia. She asks readers to reconsider the nature and authority of law and legal systems transplanted to effect colonisation. Focussing on Australian criminal law, she challenges assumptions about its lawfulness and just–ness, and insists that the reader see its inherent violence against Indigenous people, ways of being and law. This provocative and uncomfortable essay endeavours to create the possibility that readers will gain some insight into Aboriginal Peoples’ perspectives. It does so first by sharing stories of First Peoples experience of state law and their practice of their own law. It also does so by offering another way of understanding what is lawful. Williams asks readers to consider what it might mean to shift their perspectives: what might happen if we assumed that all law derives from Country, not from courts or legislators? and that lawful behaviour, at minimum, requires us to recognise that everyone and everything is interrelated? At base it would require the state to stop claiming the primacy of its law, and to recognise instead, that, in Australia, two laws (First and State) exist under, and are subject to, one law (derived from Country).

Since the beginning of white settlement in Australia, the law of civil wrongs has reflected a tension between the constraints imposed by being part of an imperial structure which formally mandated ‘one common law’ for the empire with the need for the law of civil wrongs to be appropriate to the different social and environmental conditions in Australia. For much of this history, genuine attempts by Australian legislatures and courts to adapt the law of civil wrongs were masked by the self-identification of Australian lawyers as members of the British race, of which the common law was a cultural artefact, and the resultant need to identify local legal development as within that tradition. This chapter attempts to unpack the rhetoric from the reality. It argues that, from the very first, there was a distinct pluralism that operated within the law of civil wrongs in Australia, one that allowed for Australian exceptionalism that remained within the accepted limits of the one common law approach.

Copyright is a body of law that impacts upon the production and circulation of commodities that helped define Australian culture. The chapter provides an overview of Imperial copyright laws that conferred rights on British subjects living in British dominions. Australian colonial copyright laws and the first Federal law are then discussed in light of the Berne Convention for the Protection of Literary and Artistic Works (1886). Both before and after Federation, Australian copyright laws remained nested within the framework of Empire, until the passing of the Copyright Act 1968 (Cth). How the placement of Australian law within Empire impacted upon Australian creators is explored in relation to the artist and illustrator, May Gibbs (1877-1965). Race is more difficult to account for in Australian copyright history. How Protection and Assimilation areas laws restricted artistic expression and the enjoyment of copyright is explored with reference to Aboriginal artist Albert Namatjira (1901-1959).

In this chapter we look at the ways in which the Australian settler-colonial constitutional order has recognised, and denied, the status of Aboriginal and Torres Strait Islander peoples as polities.We aim to show that in settler law traditional owner communities, alone or in aggregation, are largely characterised as racial groups, not as bodies politic. We trace developments in the recognition of traditional ownership, and (in glimpses) of traditional law and custom, in Australian law since the 1960s. The story is largely one of settler resistance to Indigenous legal and political authority, in the face of sustained intergenerational Indigenous advocacy. We point in particular to the fact that because they are mischaracterised as racial communities, the efforts of Aboriginal and Torres Strait Islander People to self-determine are made vulnerable to claims that their distinctive rights and institutions discriminate against non-Indigenous Australians.

The persistence of state violence perpetrated against Aboriginal and Torres Strait Islander families is evident from first contact to contemporary child welfare interventions. These interventions have been authorised by laws and policies which have forcefully separated children from their families and communities legally and illegally, separated families through exerting control over where they could live, who could marry whom, and how their identity was legally defined. These laws and policies have also systematically excluded Aboriginal and Torres Strait Islander families from opportunities and benefits for wealth creation, laying the foundations for inter-generational experiences of poverty and trauma. The shift from formal discrimination under the auspices of ‘protection’ to assimilation saw an increase in interventions and removal of Aboriginal and Torres Strait Islander children from their families. There is continuity across different laws and policies in the presumptions about western family superiority, the embedding of non-Indigenous priorities and aspirations in law and policy, and the failure of the state to take responsibility for inter-generational harms perpetrated, or a willingness to relinquish power exercised over Aboriginal families.

Federation is an inherently flexible form of political organisation that involves ongoing negotiation, coordination and compromise to meet changing local and temporal conditions.The history of Australian Federation illustrates this: from the origins of the federal idea in the mid-nineteenth century, amid the emergence of quasi-federal arrangements within the British Empire (1847-1890); to the creative outcomes of Australia’s constitution-making decade, when American and other influences garnered attention (1891-1901); and through the subsequent outworkings of the Australian Constitution as it has been interpreted and applied alongside the growth of the nation. The proven adaptability of Federation may inform contemporary approaches to the constitutional recognition of Australia’s First Peoples.

Australia is unusual in lacking a formal bill of rights. Nevertheless, rights protections have developed, initially in the context of the emergence of settler colonialism within the British Empire. While Indigenous people were only gradually brought within the status of subjecthood, and have continued to be denied fundamental rights, early settlers including convicts had a well-developed sense of their rights as freeborn Britons. The development of the jury system, self-government and democracy were the context for a rights regime associated with a colonial liberal order in the second half of the nineteenth century. From the late nineteenth century, Australia developed a system of social rights based on the elevated status of the male breadwinner. Through the first half of the twentieth century, the British basis of rights claims remained dominant in Australia, but from the 1940s Australia was gradually drawn within an international human rights order, in a manner that strengthened the ability of marginalised groups to make rights claims through appeals to international standards and covenants. Despite the continued absence of a constitutional or legislative bill of rights, governments and courts have been active in recent decades in developing rights protections across a wide domain.