Aboriginal and Torres Strait Islander viewers are advised that the following page may contain resources with images, names and voices of people who have died.

Victorian Aboriginal Corporations for Languages Map

As seen in this Victorian Aboriginal Corporation for Languages map, over 36 Aboriginal languages were spoken in Victoria before contact. But the effects of contact and policies of past governments, including the forced removal of children leading to the Stolen Generations, disrupted the continuation of many of those languages. Only a few remain today that are still spoken fluently.

Archaeological evidence has shown Aboriginal occupation across Victoria dating back thousands of years before contact. About 200 sites are within the Melbourne metropolitan area itself. In fact, a waterfall was once located at Queens Bridge in the Melbourne CBD, which was an important resource for the Woiwurrung and Boonwurrung peoples, and separated the upper and lower parts of the Yarra river. Above the waterfall, the river contained fresh, clean, drinkable water. Below the waterfall, it mixed with seawater from the bay and was rich in natural resources. The stones at the top of the waterfall also provided an easy way to cross the river, but this crossing was destroyed in the 1880s and covered by the bridge.

To learn more about contemporary Koori culture, heritage, community infrastructure and planning, visit the First Peoples – State Relations website. The Dhumba Murmuk Djerring Unit of Court Services Victoria may also provide specific assistance for judicial officers, tribunal members, and Court Services' employees and may be contacted at ku@courts.vic.gov.au.

Acknowledgment of Country

An Acknowledgement of Country is a way to demonstrate respect to First Nations people and culture and their positions as the Traditional Owners and Custodians of the land you are on when meeting. It should not be confused with a Welcome to Country, which can only be performed by a Traditional Owner of the land; an Acknowledgment of Country can be given by anyone and should be sincere, respectful, and personal.

This Acknowledgment has been endorsed by the Courts Koori Elders Caucus, who have advised that it is appropriate for all staff who work at Court Services Victoria. Additionally, the following guides provide a template for how a judge might open County Koori Court hearings in different parts of the state.

If you don’t know who the recognised Traditional Owners are for an area, you may consult this Victorian Aboriginal Heritage Council map.

As these materials demonstrate, the diversity of Aboriginal languages and meaning of words may lead to significant misunderstandings in court. It is important for judicial officers and tribunal members to be aware of this in order to avoid error or injustice.

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    FIRST NATIONS

    Koorified: Aboriginal Communication and Language

    This guide outlines common Koori practices and attitudes regarding respect, communication and language. It includes an extensive Koori vocabulary with explanations.
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    FIRST NATIONS

    Judicial Understandings of Aboriginality and Language Use

    This paper examines how Aboriginal language use can lead to misunderstandings within the legal system, unless participants are aware of those language practices. In some cases, this may require jury directions, to ensure jurors can correctly understand the meaning of certain uses of language.
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    FIRST NATIONS

    One Justice – Many Voices

    Former High Court Chief Justice Robert French AC highlights the challenges that exist when translating from one language to another, a challenge which is equally applicable to understanding Aboriginal English.
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    FIRST NATIONS

    The Aboriginal English in the Courts Project

    This report provides a summary of major research into the difficulties Aboriginal and Torres Strait Islander peoples face when communicating in the legal system, with empirical research on the use of Aboriginal English in Victorian court proceedings and by Victorian Aboriginal Legal Services staff. It also makes suggestions on how lawyers can improve their use and understanding of Aboriginal English in court proceedings.
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Bail is a significant matter for Aboriginal and Torres Strait Islander accused, both because of their overrepresentation in the criminal justice system and for cultural reasons.

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    FIRST NATIONS

    Memorandum – Section 3A of the Bail Act 1977 (Vic) Determination in Relation to an Aboriginal Person

    Prepared by Judge Irene Lawson, this memorandum addresses the section of the Bail Act which requires decision makers to take into account any issues that arise due to a person's Aboriginality. It summarises some key cases in relation to the section.
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    FIRST NATIONS

    A Bail Review

    Former Justice Hinton powerfully illustrates some of the competing interests and concerns in a bail application involving an Aboriginal accused.
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The reasons in these bail applications highlight the importance of considering and accused’s Aboriginality in determining whether to grant bail.

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    Re LT [2019] VSC 143

    The court found that exceptional circumstances existed that were sufficient to justify a grant of bail because a young Aboriginal woman should be supported to explore her heritage and strengthen family bonds, rather than have that opportunity disrupted by being remanded in custody.
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    Re Foster [2020] VSC 62

    The court said that the vulnerability of Aboriginal people in custody, combined with alternatives to remand, such as the opportunity to explore culture, and the availability of drug and alcohol rehabilitation treatment ‘based on therapeutic community principles and Aboriginal cultural practices’ may demonstrate the existence of exceptional circumstances sufficient to justify a grant of bail.
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    Re Kennedy [2020] VSC 187

    The court here found that the restrictions in place on remand are quite onerous for an Aboriginal offender who is both isolated from his family during a period of grieving, a significant process for his community, and the increased danger to him as a person at risk of contracting the COVID-19 virus.
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    HA (a pseudonym) v The Queen [2021] VSCA 64

    The court held that sections 3A and 3AAA(1)(h) of the Bail Act 1977 (Vic) require a court to consider any issues that arise due to a person’s Aboriginality and are an important and salutary recognition that cultural connection can play a significant role in rehabilitating an offender of Aboriginal heritage. It can be a pivotal factor diverting them from entrenched offending behaviour.
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    Re GG [2021] VSC 12

    The court found that the gross overrepresentation of Aboriginal people in custody is closely tied to the dangerousness of custody and detention for them, and that ‘the capacity for the imposition of conditions to mitigate any risk is especially important in the context of an Aboriginal child’. Further, it said the requirement in s 3A that Aboriginal cultural issues be taken into account should be read in conjunction with the cultural rights Aboriginal people possess which are protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 19, and held that together they mandate appropriate consideration be ‘accorded to a person’s Aboriginal cultural identity in adopting procedures and making determinations in a bail application’. Lastly, it noted that the purpose of sections 3A and 3B is that children, especially Aboriginal children, should be released on bail where possible in order to protect them from the physical and emotional harm and the negative formative influence they are especially vulnerable to in detention on remand.
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    Re Hooper (No 2) [2021] VSC 476

    The court stated that an accused’s inconsistent connection with their Aboriginal heritage does not weaken the importance of that factor in considering whether bail should be granted.
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    Re KF [2022] VSC 349

    The court found that circumstances demonstrating the existence of a compelling reason justifying the grant of bail may include the profound grief caused to an Aboriginal accused by the death of two family members while on remand, and the sorrow and guilt associated with not being able to participate in Sorry Business. As well as the Sorry Business obligations imposed upon her as the senior next of kin for her daughter. The court also warned that counsel should proceed with caution in questioning a person’s Aboriginality where no controversy on that question is raised on the material before the court. Lastly, the court said that the application of s 3A may be of central relevance to consideration of the question of unacceptable risk where the bereavement experienced by the accused on remand, and the need for her to finalise funeral arrangements, should serve as an incentive to avoid doing anything that would require her return to custody where she would not be able ‘to participate in these important cultural obligations’. Further, if the accused breached her bail conditions she would be returned to custody and taken away from her family at a time when they need each other, and this strong family connectedness should serve as a protective factor.
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There are Koori Courts in three Victorian jurisdictions, with the County Koori Court drawing on earlier successful implementation of Koori Courts in both the Magistrates’ Court and the Children’s Court.

The objective of each Koori Court is to ensure the Aboriginal community is more involved in sentencing by providing for Aboriginal Elders, Respected Persons, Koori Court Officers, community organisations, community groups, and family to play a part in the process. It is a much less formal proceeding; participants are encouraged to use plain language and sit together around a table where Elders and Respected Persons may give cultural advice to the judicial officer to help them make a culturally appropriate decision that helps reduce the likelihood of reoffending. The Elders and Respected Persons may also speak to the offender about their circumstances and why they are in court. The offender also has the opportunity to speak for themself.

County Court

The County Koori Court is the first Koori Court in a higher jurisdiction in Australia. Judge Johns is the judge in charge of the County Koori Court. The requirements for the County Koori Court to hear a matter are the same as in the Magistrates' Koori Court. See ss 4A-4G of the County Court Act 1958 (Vic).

The County Koori Court sits at:

•    Bairnsdale
•    Geelong
•    Melbourne
•    Mildura
•    Morwell
•    Shepparton
•    Warrnambool. 

The County Koori Court has prepared some materials to assist participants in the process, including the County Koori Court Practice Note and County Koori Court eligibility, which outlines the eligibility criteria for participation in the Court. 

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    FIRST NATIONS

    Ethics, Bias and Conflict of Interest

    Prepared by Justice Geoffrey Eames, this fact sheet discusses some of the ethical issues unique to the Koori Courts.
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    Case Note: Cemino v Cannan [2018] VSC 535

    This note summarises the Supreme Court’s finding that when a party applies for transfer of proceedings to a Koori Court, the court must give primary attention to the subject matter, purpose and scope of the Koori Court legislation. It also found that the court must take into account the Charter rights concerning discrimination and cultural rights when making transfer decisions. Traditional principles concerning proper venue are not decisive when making transfer decisions to the Koori Court.
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Magistrates’ Court

The Magistrates’ Koori Court may have jurisdiction under ss 4D-4G of the Magistrates Court Act 1989 (Vic) to deal with a proceeding if an Aboriginal offender has both:

  • pleaded – or intends to plead – guilty to a non-sexual offence 
  • consented to the matter being dealt with by the Koori Court. 

The Magistrates’ Koori Courts sit at:

The Magistrates’ Koori Court does not currently have the ability to hear matters involving the breach of a family violence intervention order, although a recommendation has been raised to remove that limitation.

Umalek Balit, formerly the Koori Family Violence Victim Support Program, exists at the Melbourne, Mildura, Heidelberg, Latrobe Valley, Ballarat and Shepparton Magistrates’ Courts. Umalek Balit recognises that the complexity of family violence within Victorian Aboriginal communities is reflected throughout the family violence court process. The service aims to deliver the appropriate support, information and referrals for family violence matters involving Aboriginal families. They can be contacted by email to UmalekBalit.referrals@courts.vic.gov.au.

Children’s Court

The Children’s Koori Court was established to address the overrepresentation of Koori youth in the criminal justice system. The Court aims to reduce offending behaviour and reduce the number of young Koori people being sentenced to a period of detention.  

Under ss 517-520 of the Children, Youth and Families Act 2005 (Vic) the requirements necessary for the Children’s Koori Court to hear a matter are the same as in the Magistrates’ Koori Court, except that the Aboriginal child need not plead – or intend to plead – guilty, they may also have been found guilty. 

The Children's Koori Courts sit at:

  • Bairnsdale
  • Dandenong
  • Geelong
  • Hamilton
  • Heidelberg
  • Melbourne
  • Mildura
  • Morwell
  • Portland
  • Shepparton
  • Swan Hill
  • Warrnambool
  • Wondonga/Wangaratta.
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    Bugmy Bar Book

    This bar book provides key research relating to Aboriginal experiences of disadvantage and deprivation, and is designed to assist in the preparation and presentation of evidence to establish the application of the Bugmy principles in sentencing.
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    The Complexity of Sentencing Koori Offenders

    Justice Stephen Kaye summarises the principles from key cases on sentencing Aboriginal and Torres Strait Island offenders, and examines the three factors that often weigh heavily in sentencing: socio-economic disadvantage, substance abuse, and mental health issues.
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    SOCIAL CONTEXT

    Indigenous Imprisonment Fact Sheet

    This resource provides a visual representation of the problem of over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system.
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Significant cases
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    R v Fuller–Cust (2002) 6 VR 496

    The minority judgment of Eames JA (from [78]) remains a key statement of principle on how courts should take into account experiences of separation and disadvantage which are often present with Aboriginal offenders. The judgment grapples with the need to ensure that sentencing does not adopt a racist or paternalistic attitude, while properly recognising the impact of race on the offender’s circumstances.
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    R v Morgan (2010) 24 VR 230

    This case provides a detailed discussion of the Koori Court process and establishes that participation in the sentencing conversation there can be treated as a mitigating factor, depending on the facts of the case. The case also provides an example of a young Aboriginal offender who committed serious offences and had made significant and demonstrated progress towards rehabilitation which the court described as ‘uniquely compelling, particularly for an offender who had suffered from an unfortunate disadvantaged background’.
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    Bugmy v The Queen (2013) 249 CLR 571

    The High Court in this case affirmed the continuing need to take an offender’s disadvantaged upbringing into consideration despite a history of offending, a recognition of the kinds of disadvantage which are prevalent in some Aboriginal communities and the need for sentencing courts to consider the particular circumstances of the offender without adopting any stereotypical views based on the offender’s race.
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    Munda v Western Australia (2013) 249 CLR 600

    The High Court discusses the competing principles between the frequency of social disadvantage for Aboriginal offenders, the need to avoid stereotypical assumptions about Aboriginal offenders and the demands of proportionality when weighing the seriousness of offending against an offender’s mitigating factors.
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    Honeysett v The Queen [2018] VSCA 214

    The Court of Appeal highlights the relevance of participation in the Koori Court process to sentencing, including the relevance of voluntary participation, the need for participants to make direct statements to the court and the court's ability to assess the offender's genuineness. The Court also rejected a submission that a Koori Court must call for a pre-sentence report in all cases. See the College’s case note for summary and analysis.
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    DPP v Heyfron [2019] VSCA 130

    The Court of Appeal reiterates the importance of recognising participation in a meaningful way in the sentencing conversation in the sentence, and confirms that it is appropriate to take into account an offender’s participation in the sentencing conversation for the reasons explained in both Morgan and Honeysett.
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    DPP v Poole (a pseudonym) [2020] VCC 340

    This case provides detailed discussion of the interrelationship between personal circumstances and the wider cultural context of Indigenous dispossession. It discusses the relevance of trauma and deprivation, alcohol abuse and inter-generational disadvantage to the sentencing exercise. It also discusses the utility of a ‘Gladue-style’ psychological report tendered on the plea.
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Statewide

Wulgungoo Ngalu Learning Place
This brochure outlines the services available at Wulgungo Ngalu for Koori men on a community correction order. It provides an opportunity for them to learn new skills, connect with culture, and participate in programs to help address their offending behaviour.

Ngarra Jarranounith Place, Residential Men’s Healing Place
Information on services provided by Ngarra Jarranounith to support adult men at risk of using family violence to create positive change in their life.

Bunjilwarra
Bunjilwarra is a Koori youth alcohol and drug residential healing service designed to connect young people with Aboriginal culture while supporting their rehabilitation from alcohol or drug abuse.

Northwest: Mallee

Mallee District Aboriginal Services
MDAS provides a wide variety of services to the Aboriginal community in the Northwest. Those relevant to sentencing include the following:

  • Wiimpatja Healing Centre
    This service provides a 4- 12-week intensive alcohol and drug residential rehabilitation program for those on parole, a community correction order or other sentence.
  • Youth Justice Program and Youth Support Services
    Both services are designed to divert Koori youth from involvement in the criminal and youth justice systems.    
  • Family violence programs
    These programs are designed for those accused of using family violence, as well as the families and victims of family violence.
  • Koori Women’s Diversion Program
    This program provides referral pathways to reduce Koori women offending and support those on justice orders.
Southeast: Gippsland

Victorian Aboriginal Child Care Agency

VACC provides a variety of services to the Koori community in the southwest. Those relevant to sentencing include the following:

  • Staying Strong and Staying Out of Trouble
    This program aims to keep young Aboriginal people from further contact with the criminal justice system.
  • Koorie Women's Diversion Program
    This program provides supports and services that aim to prevent Koori women from having further contact with the justice system.
  • Local Justice Worker
    This program supports Koori offenders to meet the requirements of their community corrections orders and fulfill other sentencing obligations.
Coroners Court

The Coroners Court of Victoria has a Koori Engagement Unit to help families navigate the Coroners Court and provide additional support during the coronial process. This includes delivering sensitive information on behalf of coroners, helping families understand information contained within a coronial brief and providing support during court proceedings. Enquiries can be made to the Coronial Admissions and Enquiries on 1300 309 519.

Judicial officers and practitioners may also be assisted by the Court’s Practice Direction No 6 of 2020: Indigenous Deaths in Custody.

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    FIRST NATIONS

    Inquest into the Passing in Custody of Tanya Day

    This was the first inquest to consider whether systemic racism contributed to the cause and circumstances of an Aboriginal woman’s death in custody.
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Children's Court

Marram Ngala Ganbu is the Koori hearing day in the Family Division of the Children’s Court, hearing child protection matters at both the Broadmeadows and Shepparton Magistrates’ Courts. Marram Ngala Ganbu aims to provide a flexible, culturally affirming and safe court environment and process that enables greater participation by family members. Koori conveners sit at a number of Children’s Courts within the Family Division.

If a child protection worker places an Aboriginal child or young person in out of home care, this must be done in line with the Aboriginal Child Placement Principle.

Resources and supports are also available to aid Koori families appearing before the Court.

Victorian Civil and Administrative Tribunal

The Victorian Civil and Administrative Tribunal (VCAT) offers culturally appropriate and safe services to Koori clients through its Koori Engagement Team. The Koori Engagement Team will support and assist with applications and proceedings, and will provide culturally appropriate referrals to external stakeholders, as well as general advice and emotional support. Enquiries can be made to the Koori Engagement Team on 0417 516 335.

VCAT also provides videos showing how the Team can assist, suggestions on how to prepare for a hearing, and instructions on how to book a Koori hearing room where Koori participants can feel safe and comfortable.

Victim's of Crime Assistance Tribunal (VOCAT)

VOCAT has a Koori List to assist members of community who have been the victims of crime. Proceedings are governed by Practice Direction No 2 of 2009. VOCAT has published the Dhumbumana Healing Strategy 2021–2023 to support its delivery of services that are culturally sensitive and well regarded by the Koori community.

Courts and custody

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    FIRST NATIONS

    Royal Commission into Aboriginal Deaths in Custody

    This final report was published in 1991 after a 10-year investigation into the underlying social, cultural, and legal issues behind the deaths of Aboriginal and Torres Strait Islander people in custody and contains over 330 recommendations.
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One of the recommendations of the Royal Commission led to the creation of the Victorian Judicial Officers’ Aboriginal Cultural Awareness Committee (‘JOACAC’), in particular the Commission’s finding that judicial officers’ lack of understanding of the cultural and socioeconomic issues affecting Aboriginal and Torres Strait Islander persons coming before the courts was one of the contributing factors to their overrepresentation in the criminal justice system. 

Supreme Court of Victoria Justice Jane Dixon and Magistrates’ Court of Victoria Magistrate Rose Falla are the current co-chairs of JOACAC. Its members include judicial officers from each Victorian and Federal jurisdiction, and Aboriginal and non-Aboriginal Victorians who have an interest in educating judicial officers about Aboriginal and Torres Strait Islander cultural awareness. The Judicial College has supported JOACAC to design and deliver educational programs since 2007, including an annual series of ‘Koori Twilight’ seminars, visits to significant sites, and multi-day cultural immersion events known as ‘Back to Country’.

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    FIRST NATIONS

    Deaths Inside: Indigenous Australian Deaths in Custody 2021

    This database, developed by The Guardian Australia, records the deaths in custody that occurred between 2008 and 2021, and includes links to coronial and news reports about those deaths.
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    FIRST NATIONS

    Pathways to Justice - Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples

    This report by the Australian Law Reform Commission examined the laws and legal frameworks that contributed to the incarceration rate of Aboriginal and Torres Strait Islander peoples.
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    The Path to Justice: Aboriginal and Torres Strait Islander Women’s Experience of the Courts

    This report collates previous research on how the justice system can better meet the needs of Aboriginal and Torres Strait Islander women, and summarises fresh research in the form of consultations with stakeholders who work with Aboriginal and Torres Strait Islander women.
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    FIRST NATIONS

    Over-Represented and Overlooked: the Crisis of Aboriginal and Torres Strait Islander Women's Growing Over-Imprisonment

    This report examines the growing rates of imprisonment of Aboriginal and Torres Strait Islander women, and recommends governments and police implement policy changes to monitor and reduce that trend. It also recommends educating judicial officers on the gendered impact of colonisation, systemic discrimination and disadvantage, and how those contribute to over-imprisonment.
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    FIRST NATIONS

    Our Youth, Our Way: Inquiry into the Over-Representation of Aboriginal Children and Young People in the Victorian Youth Justice System

    This report presents the findings and recommendations of the Koori Youth Justice Taskforce and the Commission’s systemic inquiry.
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Health and wellbeing

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    FIRST NATIONS

    Indigenous People, Mental Health, Cognitive Disability and the Criminal Justice System

    This report collates previous research on how the justice system can better meet the needs of Aboriginal and Torres Strait Islander women, and summarises fresh research in the form of consultations with stakeholders who work with Aboriginal and Torres Strait Islander women.
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    FIRST NATIONS

    Victorian Suicides of Aboriginal and Torres Strait Islander People

    The Coroner’s Court prepared this report in order to support suicide prevention responses. It analyses all Indigenous passings identified as suicides between 2009–2020, including socio-economic demographics and contextual stressors.
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    FIRST NATIONS

    Stolen Generations Reparations Package

    The Victorian Government has made this package available to Aboriginal and Torres Strait Islander persons that were removed from their families. It is intended to provide support to those affected, to address the trauma and suffering caused by the forced removal of Aboriginal children from their families, community and culture.
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Self-determination and truth-telling

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    FIRST NATIONS

    Victorian Aboriginal Justice Agreement (AJA)

    The first AJA agreement was entered into following the Royal Commission into deaths in custody. It is a long-term partnership between the Victorian Government and the Aboriginal community that works to improve Aboriginal justice outcomes, family and community safety, and reduce over-representation in the Victorian criminal justice system.
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    FIRST NATIONS

    Burra Lotjpa Duguludja: Victorian Aboriginal Justice Agreement (AJA) – Phase 4

    This latest phase of the AJA is an important step in the long and proud history of the Aboriginal community and Victorian Government working in partnership; it strengthens and gives further expression to the Victorian Government’s commitment to self-determination.
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    FIRST NATIONS

    Yoorrook Justice Commission Interim Report

    Victoria’s historic Truth-Telling Commission has released its interim report on its progress in gathering evidence of past and ongoing injustices experienced by First Nations peoples across the state.
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    FIRST NATIONS

    Court Services Victoria Self-Determination Plan: Action Plan 2021–2025

    Following the Victorian Aboriginal Justice Agreement, Court Services Victoria has adopted four priority areas to establish a strong foundation for its Self-Determination Plan. They are: prioritise culture; address trauma and support healing; address racism and promote cultural safety; and transfer power and resources to communities.
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Research

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    FIRST NATIONS

    Indigenous Law Subject Guide

    Access the Law Library Victoria's curated resources on indigenous law research.
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