‘We’re still hunted’: Ned Kelly family descendants lose legal bid for cultural protections

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Ned Kelly’s great-grandniece has lost a Supreme Court bid to halt development at the site of the outlaw’s last stand at Glenrowan after arguing she and her family should be afforded cultural protections under Victoria’s human rights laws.

Joanne Griffiths, a fourth-generation descendant of Ned and Dan Kelly’s parents, John and Ellen Kelly, said the decision handed down last week was the latest setback in clashes with Victoria’s legal system that has punished the family for hundreds of years.

Joanne Griffiths with Ned Kelly’s armour at the State Library Victoria.Credit: Joe Armao

“We were hunted back then, and we’re still hunted now,” she told this masthead. “If we were Indigenous, this would not be happening.”

The action was launched by a not-for-profit Griffiths founded in 2015 called the Ned Kelly Centre, established, she said, to protect the cultural heritage of the outlaw and tell the story of the Kelly family on their own terms.

Griffiths had attempted to halt the construction of two buildings near the site where Kelly was captured and arrested in Glenrowan, in the state’s northeast: one a tower, and the other a bridge upgrade.

The developments, she claimed in legal documents, are “inconsistent with, infringe upon, and/or contradict the human rights of the descendants”.

“The descendants have the right pursuant to the Charter [of Human Rights] as a distinctive cultural group to practise and enjoy their culture including their intangible cultural heritage including traditional use and enjoyment of the heritage place.”

She said she was “extremely disappointed” and “mortified” by the decision.

“I’m sure we’re still being discriminated against,” Griffith said.

The centre’s lawyer, Alan Flint, argued that the Kelly descendants should be recognised as a distinct cultural group and said their legal entitlement to bring the case was akin to Aboriginal groups and veterans who are afforded protections under Victoria’s Charter of Human Rights.

‘We were hunted back then, and we’re still hunted now.’

“They view themselves as cultural custodians,” Flint told Justice Melinda Richards on July 6.

The structures threatened to entrench the “gross disrespect to the descendants that would take place if that tower is completed,” Flint argued, adding that the family had undergone “distress and persecution” as a result of the development.

“I know that the cultural rights have been disputed, but if you look at the rights in the Human Rights Act as what constitutes a cultural group, the cultural group is part of the group that has a common racial, religious or cultural background and see themselves as part of the culture.”

Action was taken against the City of Wangaratta, Heritage Victoria and the Australian Rail Track Corporation (ARTC).

Ned Kelly in chains taken by Charles Nettleton at the gaol the day before he was hanged.

The town of Glenrowan is where Kelly was finally captured by police in June 1880. The other members of the Kelly Gang died during an incident later called the “siege of Glenrowan”.

Joe Byrne was shot by police, and Dan Kelly and Steve Hart died inside Ann Jones’ Glenrowan Inn, where the gang had been waiting with hostages.

The police set fire to the inn while they were still inside, and it burnt to the ground. Three civilians also died, including the publican’s thirteen-year-old son.

Barnaby Chessell, acting for the ARTC, argued against the proposition that Kelly’s descendants should be considered a distinct cultural group entitled to separate human rights.

“We submit in addition that descendants of Ned Kelly don’t constitute a cultural group to which the protections afforded under the [human rights] charter would apply,” he argued.

Flint also accused the council and ARTC of fraud, and said the permits issued for construction were invalid on that basis.

Justice Richards dismissed the case, rejecting Griffiths’ application for an injunction and finding that the human rights charter did not apply because the Ned Kelly Centre is a corporation. She said Griffiths’ assertions she is part of a distinct cultural group “are at present no more than assertions”.

“Ms Griffiths is certainly passionate and determined in her efforts to protect and preserve Kelly related cultural heritage, but her affidavits told me nothing about any cultural practices she shares with other descendants of the Kelly family,” Richards found.

An artistic rendering of the Glenrowan Heritage Project tower.Credit: Glenrowan Heritage Project

Part of the proposed development includes a viewing tower, a siege site experience enhanced with virtual and augmented realities and landscaping works around Lions Park.

Presently there is a plaque commemorating the site, and a few tourist attractions including the Kate’s Cottage museum and an animatronic display called Kellyland.

“I think it’s great,” said Doug Stoneman, owner of Kate’s Cottage. Stoneman said he has just updated a Kelly mural in town and that the display will draw new tourists to the area.

“We don’t know what’s going there because it’s not open yet, but from what I’ve been told it’s going to be a visual touchscreen which then lights up the actual area based on what it looked like back in the day, which sounds awesome.”

City of Wangaratta chief executive Brendan McGrath wouldn’t comment on the case but said the community is eagerly awaiting the centre.

During the hearing Justice Richards encouraged Flint to confine his arguments to the claims at hand, and avoid giving her a “history lesson” about past crimes inflicted on the Kelly family.

“You have a quite significant task to persuade me that I should grant relief in any form at the moment, and you really should focus on doing that rather than giving me a history lesson.”

An ARTC spokesman said the Ned Kelly Centre seemed intent on pursuing the matter further despite the rejection by the court, and it would continue to legally defend the development should the need arise.

Griffiths said she was “absolutely mortified” by the outcome and that she intended to appeal the decision.

”It is our history and our heritage and I think if anyone could present it in a way that it should be done, it should be us, but we seem to have no voice. I’m most sure we are still being discriminated against,” she said.

“The Kellys, let’s just say, we haven’t had a great time with the courts over the last hundred-and-something years; have you noticed?”

Heritage Victoria declined to comment.

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