This article was originally published in Precedent, the journal of the Australian Lawyers Alliance, issue 189, on August 2025 (Sydney, Australia, ISSN 1449-7719).
The authors acknowledge and pay their respects to the
traditional custodians of the lands on which this article was
written, the Arakwal, Minjungbal and Widjabul Wia-bal people of the
Bundjalung Nation, and the Wurundjeri and Bunurong people of the
Kulin Nation, and the lands on which this article will be read.
This land is Aboriginal land. Sovereignty was never ceded.
Legal problems rarely arise in isolation. People dealing with the legal system often do so in combination with disadvantage and complex needs. In these cases, it is helpful for lawyers and decision-makers to have access to credible and informative resources. The Bugmy Bar Book is such a resource.
The Project
The project was originally set up by a committee in NSW in 2018 to assist criminal lawyers with the application of sentencing principles set out by the High Court of Australia in Bugmy v The Queen.1 The resource is now being used in a range of legal proceedings, including civil law practice areas and tribunals, in NSW, the ACT, Victoria and Queensland. The Bugmy Bar Book is supported by the NSW Judicial Commission,2 the Judicial College of Victoria,3 the Judicial Council on Diversity and Inclusion,4 and the Australasian Institute of Judicial Administration Limited.5
By providing open access to credible research on a variety of topics, it aims to assist with lawyers' preparation and presentation of evidence to establish the impact of a background of deprivation and identify the relevance of a person's background to legal proceedings. The resource is mainly comprised of chapters summarising key research concerning the potential impacts of different forms of social and economic disadvantage, including disability and health conditions, along with strength-based supports.
Some chapters focus on experiences specific to First Nations people, such as 'Members and Descendants of the Stolen Generations', 'Cultural Dispossession', and the 'Significance of Funeral Attendance and Sorry Business for Aboriginal and Torres Strait Islander People'. However, the resource is also relevant to non-First Nations people, with general chapters such as 'Childhood Exposure to Domestic and Family Violence', 'Parental Incarceration', 'Homelessness', and 'Refugee Background'. Each chapter has a one-page executive summary, and a summary of case law from around Australia.
The chapters are subject to a rigorous review process. Once drafted by a researcher under supervision of a senior member of the legal profession, the chapters are reviewed by an expert in the field before a final review by an independent advisory panel, including an independent First Nations review.
The project has published two key expert reports: the Significance of Culture to Wellbeing, Healing and Rehabilitation in 2021,6 by psychologists Dr Paul Gray, a Wiradjuri man, and Vanessa Edwige, a Ngarabal woman, and the Impacts of Institutionalisation in 2024,7 by Dr Robyn Shields, a Bundjalung woman, and Dr Andrew Ellis. The project has also commissioned two further reports that will be published this year: Decision-Making and Emotional and Behavioural Regulation in 18 to 25-Year-Olds: A Neurodevelopmental Perspective, a multi-authored report led by Dr Jodi Kamminga and Dr Travis Wearne, and Impacts of Intergenerational Trauma by Professor Pat Dudgeon, a Bardi woman, and Professor Helen Milroy, a descendant of the Palyku people.
The project is led by a committee constituted by representatives of key agencies and organisations in the justice sector, judicial officers, the Office of the Director of Public Prosecutions, Aboriginal and Torres Strait Islander Legal Services, Legal Aid, Public Defenders, members of the bar and private profession, academics, psychologists, and a First Nations subcommittee. The committee members are representative of most states and territories and all committee members develop and oversee the project voluntarily.8
The project received a grant from the Paul Ramsay Foundation in 2022 which provided for staff to be employed for the first time and allowed for a comprehensive practitioner and judicial education program to be developed and delivered in multiple jurisdictions.9 The resource now assists legal practitioners, decision-makers and health and psychology experts beyond its initial intended scope, with 20 chapters published, and independent research commissioned to address gaps in the literature.
The Case That Inspired the Project
William David Bugmy, a Barkindji man from far-western NSW, grew up in an environment without the resources and basic infrastructure many are used to living with in Australia. In the context of poverty, he witnessed and engaged in alcohol and other drug use from a young age. He finished schooling at year 7 and experienced numeracy and literacy challenges. Expert reports tendered on his behalf in criminal proceedings established that he experienced disability and significant mental health issues.
Lawyers from the Aboriginal Legal Service NSW/ACT represented Mr Bugmy in relation to charges that arose while he was serving period of custody in Broken Hill at first instance,10 advancing argument in sentencing proceedings that Mr Bugmy's background had informed his experiences and underpinned the offending for which he was to be sentenced. The Crown appealed, challenging the adequacy of the sentence imposed, and argued that these considerations had effectively been extinguished over time by Mr Bugmy's repeated contact with the criminal courts. Mr Bugmy sought leave to appeal the Court of Criminal Appeal outcome to the High Court of Australia.
One of the founding members of the Bugmy Bar Book and now Supreme Court Justice Dina Yehia, was the Senior Counsel who represented Mr Bugmy in the High Court appeal with junior Gabrielle Bashir (now Senior Counsel) instructed by the Aboriginal Legal Service NSW/ACT.
The High Court's decision in Bugmy considered the sentencing of First Nations people, and established that a childhood of deprivation may mitigate a sentence by operating to reduce moral culpability and moderate the application of general and specific deterrence, and that as a background of profound deprivation leaves an indelible mark on a person, these effects do not diminish with the passage of time or repeat offending and must be given full weight in every sentencing decision.11
The issue of whether a causal link between a person's background and the offending is required has since been considered,12 and the legal principles well established in sentencing proceedings throughout Australia.
The Application in Legal Proceedings
Over time, the value of the Bugmy Bar Book has been realised in different legal contexts including criminal proceedings, Royal Commissions and inquiries, and civil law practice areas, family, care and protection matters, and coronial inquests.
A summary of published judgments and decisions referring to the Bugmy Bar Book is maintained on the website.13
The following examples provide an insight.
Yehia SC DCJ (as she then was) described how the materials can assist judicial decision making in R v Tsingolas14:
Baines v R16 dealt with an appeal by a First Nations offender sentenced for the murder of an underworld figure. The offender had relied upon his background of disadvantage in sentencing proceedings, with evidence about his low socio-economic status, exposure to violence, abuse and neglect, and childhood experience of both parents being incarcerated as matters in mitigation.
The majority allowed the appeal on the ground that the sentencing judge had erred in not applying Bugmy principles to reduce the offender's moral culpability, with the decision providing important commentary about how the Bugmy Bar Book may be used in sentencing proceedings. Simpson AJA described the Bugmy Bar Book as containing a 'considerable quantity of social research'17 amounting to expert evidence 'capable of assisting a sentencing Judge to understand specific evidence about the circumstances of a particular offender, placed in a wider context',18 and laying a foundation for the acceptance of relevant evidence of an offender's personal circumstances. Dhanji J observed the value of the research lay in its potential to enhance understanding of the impact of an offender's background, and in a separate dissenting judgment found that the failure of the sentencing judge to have regard to that material was an error, although this ground was not accepted by the majority on appeal.
In Re McLaughlin,19 Incerti J referred to the requirement that the court is to take into account any issues that arise due to a person's Aboriginality pursuant to s3A of the Bail Act 1977 (Vic), observing that '[t]he Bugmy Bar Book provides carefully researched materials that speak to the significance of this cultural identity on every aspect of the individual and their application'.20 In Re Males,21 Incerti J took into account the chapter on 'Impacts of Imprisonment and Remand in Custody' and that '[t]he incarceration of a parent may impact negatively on the physical and mental health of the children of an offender, their development, education and employment outcomes', considering in that application that the historical separation of Aboriginal families, the applicant's own difficult family background, and parenting responsibilities and the objective of keeping families together, were all significant factors.22
The Bugmy Bar Book was relied upon in FYF v Commissioner of Victims Rights,23 an appeal of a decision pursuant to the Victims Rights and Support Act 2013 (NSW) by the Civil and Administrative Tribunal of New South Wales. The matter related to a complex factual matrix following a murder trial. The applicant in the tribunal matter was the partner of the murder victim. Legal Aid NSW represented the applicant in the internal review and assisted pro bono in the NCAT proceedings. Senior Member Riordan summarised the applicant's submissions, stating that '[t]he Bugmy Bar Book is used by legal practitioners to highlight the impacts of experience of disadvantage of Aboriginal people', and relevant considerations including childhood exposure to domestic and family violence and Fetal Alcohol Spectrum Disorders, and cultural dispossession.24 The original decision to refuse payment was set aside with a finding that the applicant was eligible to a reduced recognition payment being made.
In relation to the use of the Bugmy Bar Book in civil administrative proceedings, Sue-Ellen Hills, a First Nations senior solicitor at Legal Aid NSW says that 'Legal Aid NSW has been using the Bugmy Bar Book in civil matters for several years'. The resource has been used consistently in housing matters where Legal Aid NSW's clients are at risk of homelessness, to persuade the Tribunal that termination of a lease is not justified. Additionally, Legal Aid NSW has used the resources to argue that a decision-maker should consider an individual's circumstances 'as a relevant factor in the exercise of their discretion'.25
Although not yet referred to in any published tribunal decisions in Victoria, Judge Caitlin English, Vice President of the Victorian Civil and Administrative Tribunal, recently observed: 'the Bugmy Bar book is such a rich resource, I think its relevance to work of decision makers in civil and administrative jurisdictions will become more apparent as it is discovered and explored'.26
Practitioners will need to exercise care to raise the resource at first instance, in case jurisdictional rules proscribe raising new material on appeal.
How the Bugmy Bar Book Can Be Used
The resource may assist lawyers to:
- gain a deeper understanding ofvthe nature and possible impacts of a client's early life experiences, make appropriate early referrals to rehabilitation and support services,
- prepare and adduce evidence by way of affidavits from clients, their family and community members,
- request medical and other records,
- engage experts to provide reports and provide comprehensive information about a client's background and experiences, supporting evidence and relevant research to consider, enhancing the depth, quality and relevance of expert reports, and
- prepare legal submissions, referring to paragraphs within the relevant chapters so that specific material that links to the evidence in a client's subjective case is identified.
The material is likely to be particularly favourably received in specialist courts and tribunals.
Trauma-Informed and Culturally Safe Legal Practices
The Significance of Culture to Wellbeing, Healing and Rehabilitation report quotes a cultural safety definition from the Australian Health Practitioner Regulation Agency that can apply to legal settings.27 This includes the 'ongoing critical reflection of [legal] practitioner knowledge, skills, attitudes, practising behaviours and power differentials in delivering safe, accessible and responsive [legal representation] free from racism'.
Reading and referencing the Bugmy Bar Book chapters specific to First Nations people, and the expert reports, can support critical reflection and expansion of knowledge.
The chapters and the Significance of Culture to Wellbeing, Healing and Rehabilitation report have now been relied upon in at least 16 published judgments, enhancing trauma-informed and culturally safe practices.
The Future
The project is evolving, continuing to update and publish new online materials and provide legal education across Australia. Consultation has begun around a further collection of expert reports to improve communication and participation in legal proceedings.
The project committee is also involved in supporting an Australasian Therapeutic Courts Symposium, led by co-chair of the committee Rebecca McMahon. The Symposium will provide an opportunity to showcase the way in which therapeutic courts and restorative approaches to justice are operating in Australia and Aotearoa New Zealand and create ongoing connections between members of the legal profession and the judiciary who are involved in delivering justice.
The growing success of the project is to the benefit of all who are involved with assisting individuals navigate the complexities of the legal system in an informed and supported way.
Footnotes:
1 [2013] HCA 37 (Bugmy).
2 Ngara Yura Program (2024)
(https://www.judcom.nsw.gov.au/judicial-education/ngara-yura-program/bugmy-bar-book).
3 First Nations (2025)
(https://judicialcollege.vic.edu.au/resources/first-nations).
4 Bench Books (2025)
(https://jcdi.org.au/resources/).
5 Bench Books (2025)
(https://aija.org.au).
6 V Edwige and P Gray, Bugmy Bar Book
(https://bugmybarbook.org.au/publications/significance-of-culture-to-wellbeing-healing-and-rehabilitation/).
7 R Shields and A Ellis, Bugmy Bar Book
(https://bugmybarbook.org.au/publications/institutionalisation-2024/).
8 A full list of committee members can be found on the
website:
(https://bugmybarbook.org.au/about/project-committee/).
9 The project's employed staff presently include
Crystal Triggs as head of Project Strategy and Delivery and Chris
McDonald, a First Nations man with rich experience working towards
justice, as the Senior Project and Policy Officer.
10 Stephen Lawrence, Member of the Legislative Council,
NSW Parliament and Felicity Graham, barrister at Black Chambers,
Sydney.
11 Bugmy, above note 1, [42], [44].
12 See Director of Public Prosecutions v
Herrmann [2021] VSCA 160; R v MJ [2023] NSWCCA
306.
13 Judgments and Decisions Referring to the Bugmy
Bar Book (https://bugmybarbook.org.au/about/judgments/).
14 [2022] NSWDC 34.
15 Ibid, [87]–[88].
16 [2023] NSWCCA 302
17 Ibid, [83].
18 Ibid, [90].
19 [2024] VSC 706.
20 Ibid, [43]. Pathways to Justice – Inquiry
into the Incarceration Rate of Aboriginal and Torres Strait
Islander Peoples (ALRC Report 133) recommended that s3A of the
Bail Act 1977 (Vic) be applied nationally.
21 [2024] VSC 802.
22 Ibid, [45].
23 [2024] NSWCATAD 4.
24 Ibid, [3.1].
25 Correspondence with the Bugmy Bar Book
committee on 24 April 2024.
26 Correspondence following Twilight Highlight
CPD to VCAT members, 13 March 2025.
27 Edwige and Gray, above note 6, 12.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
