Aboriginal law & justice

Contemporary law and justice has replaced traditional Aboriginal law and caused much pain and suffering.

Aboriginal deaths in custody and Aboriginal prison rates are perpetual problems. Circle sentencing seems to break the often deadly prison cycle.

Selected statistic data

83%
Percentage of the prison population in the Northern Territory which is Indigenous [6]. The NT has the highest incarceration rate per 100,000 people [7].
26%
Percentage of the prison population in Australia which is Indigenous [7]. Aboriginal people make up 2.5% of the Australian population.
14
Times an Aboriginal person is more likely to be locked up than non-Indigenous Australians [8].
70%
Percentage of youth in prison who have been sexually assaulted as children [12].
48%
Percentage by which the Indigenous imprisonment rate of NSW rose between 2001 and 2008 [11].
7
Times an Aboriginal person is more likely to be the victim of a homicide than a non-Aboriginal person. One in 10 homicide victims is Aboriginal. [13]
33%
Percentage of people involved in police custody incidents who are Aboriginal. [14]
92%
Percentage of Australia's Aboriginal prison population who is male. [7]
$271
Daily rate for an Executive Room at the Hilton in Sydney, including breakfast buffet [16].
$269
Daily cost to the Australian government to keep a prisoner locked up [6].
$1b
Money the NSW government spends each year to maintain its prison system [11].
11
Times an Aboriginal child aged between 10 and 14 is likely to be charged by police [17].
75%
Percentage of Aboriginal people who return to NSW jails after 11 months. 50% of non-Indigenous inmates return to jail after an average of 13 months [18].
3.6
Average sentence length of Indigenous prisoners in years (non-Indigenous: 5.3) [8].
48%
Percentage of Aboriginal juveniles who end up in court. Same figure for non-Indigenous juveniles: 28% [12].
75%
Percentage of detainees placed in custody before any finding of guilt, sometimes because family circumstances will not allow them to meet bail conditions. Many of the charges do not even carry a custodial penalty. [20].
300
Minimum number of Indigenous people being arrested and taken into custody every week in NSW [21].
10%
Percentage of Aboriginal children who have a family member who has spent time in gaol. [22]
18%
Percentage of Aboriginal homicide offenders in 2007-08. Aboriginal population share: 2.3%. [13]

List of linked articles

List of short articles

If Aboriginal customary law and white law come together and recognise one another, they can change the direction everything is heading in.—Yidumduma Bill Harney, Aboriginal lawman [1]

A police officer escorts an Aboriginal man in the rain. There's more than meets the eye in this cartoon. Many Aboriginal people sense there is another reason behind them being singled out--their Aboriginality. Cartoon: Danny Eastwood, Koori Mail [19]

Genocide legal under Australian law

In 1998, the Australian Capital Territory Supreme Court deliberated about a test case brought by members of the Tent Embassy which was erected in 1972 in front of Parliament House in Canberra.

In the test case the Court’s Justice Kenneth Crispin found that “there is ample evidence to satisfy me that acts of genocide were committed during the colonisation of Australia” [23]. But no-one took notice.

In 1999 the full bench of the Federal Court [10] and later the High Court ruled that there was no law against genocide in Australia, nor does Australia have any effective remedies for crimes against humanity. Even worse is the fact that the counsel for the Prime Minister in the case argued that the Genocide Convention was deliberately not incorporated.

A newspaper at the time stated that “accused war criminals… who have become Australian citizens, will not be effected… because politicians fear that [incorporation]... will also open the way for the Aboriginal claims of genocide.” [9]

In July 1949 Australia had ratified the United Nations’ Convention on the Prevention and Punishment of the Crime of Genocide which in article 2 defines genocide as “killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group.”

However, the bill Australia passed to ratify the convention did not make genocide a crime under domestic law [23].

Consequently, the Aboriginal Tent Embassy plaintiffs in 1998 lost their case on appeal to the Federal Court.

Fact Australia has one of the weakest protections of human rights in the Western world, implementing less than half the legal obligations of international human rights treaties [24].

Social disadvantage a factor in sentencing

On 2 October 2013, the High Court found that social disadvantage should be taken into account in sentencing.

In its judgement, it found that “the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender”, among other factors such as the seriousness of an offence and the extent to which the victim has been harmed.

The court did not say that the broader disadvantage faced by Aboriginal Australians should always be taken into account in sentencing, rather courts should do so on a case-by-case basis. It also said that, black, white or brindle, if you cross the law and are sentenced, the courts must take into account your whole background, and they cannot given you a heavier sentence on the grounds that you’re older and should know better.

This was the first time in decades that the High Court looked at the sentencing of Aboriginal offenders, which makes the decision an important one [2].

From the late 1990s, prison sentences had lengthened disproportionately for Aboriginal offenders. NSW and Northern Territory courts in particular had justified long sentences for Aboriginal people convicted of serious offences by giving greater weight to the seriousness of the offence than all other considerations. [26]

However, the ruling is not permission for Aboriginal offenders to “excuse” their crime on the basis of their Aboriginality nor an endorsement or creation of a “special” regime of sentencing for Aboriginal offenders [2]. The ruling applies to all Australians.

Unfortunately, it also provides no answers whatsoever to the issue of the disproportionate and often unnecessary imprisonment of Aboriginal people.

An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence.—Joint judgement of the High Court [25]

Do we need such findings?

Ray Jackson, President of the Indigenous Social Justice Association, questions if such findings help reduce Aboriginal sentences and prison rates.

He says: “I would prefer, and recommend, the Royal Commission [into Aboriginal deaths in custody] recommendations such as 87a that all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders.” [27]

Jackson notes “that governments which have not already done so should legislate to enforce [recommendation 92 which provides] the principle that imprisonment should be utilised only as a sanction of last resort.”

Does extra police help?

What happens if more police are deployed to Aboriginal communities?

A study has shown that more police in Northern Territory communities reduced alcohol-related problems, but did little to ‘invisible’ crimes like marijuana use, sexual assault or stealing [4].

The research found that ‘public’ problems such as alcohol (46% people reporting improvements) and community violence (45%) had improved most. An interesting finding is that people in remote communities supported an ongoing police presence, with 75% of respondents approving a permanent police presence and 53% believing police did a good job [4]. However, there were vast differences between communities.

Police in some communities are so under-resourced that police officers refuse to continue working there [5].

Resources

Indigenous Justice Clearinghouse

The Indigenous Justice Clearinghouse is a national resource on Aboriginal justice. It aims to promote discussion and disseminate relevant Aboriginal justice information to government policy makers and those working in the Aboriginal justice field.

The initiative is a collaborative partnership between the Australian Institute of Criminology (AIC) and the Standing Council on Law and Justice.

Indigenous Law Centre (ILC)

The Indigenous Law Centre was established in 1981 to develop and coordinate research, teaching and information services for Aboriginal people and the law.

The ILC conducts legal research, publishes the Indigenous Law Bulletin and Australian Indigenous Law Review, develops curricula and teaching materials and aims to advance community legal education.

The publications aim to provide critical commentary on the relationship between Aboriginal peoples and the law.

Footnotes

Article sources (27)

[1] 'Crime & punishment in Aboriginal law', The Arch (Bond Uni), Spring 2009 p.14
[2] 'Indigenous imprisonment rates: Australia needs better sentencing', The Guardian 3/10/2013
[3] 'Just honour for Cooper', Koori Mail 483 p.18
[4] 'Mixed findings', Koori Mail 474 p.15
[5] 'NT death cop admits mistake', Koori Mail 412 p.41
[6] 'Inmate levels worsen', Koori Mail 454 p.14
[7] 'New approach call over jail numbers', Koori Mail 498 p.9
[8] 'More in prisons', Korri Mail 467 p.19
[9] 'Aboriginal sovereignty movement asks UN to deny Australia a seat on the Security Council', press release, Michael Anderson, 28/9/2012
[10] Nulyarimma v Thompson (includes two corrigenda dated 2 September 1999) [1999] FCA 1192 (1 September 1999)
[11] 'Books plan locked in', Koori Mail 473 p.6
[12] 'Enquiry examines jailing of juveniles', Koori Mail 472 p.37
[13] 'Killings a a far higher rate: Report', Koori Mail 492 p.8
[14] 'Mixed findings in deaths report', Koori Mail 492 p.10
[15] 'More can be done - report', Koori Mail 492 p.37
[16] http://www.hiltonsydney.com.au visit,ed 6/6/2010
[17] Koori Mail 394 p.16
[18] 'Push for recidivist programs', SMH 6/3/2010
[19] Koori Mail 522 p.20
[20] 'Reconciliation in Parliament', flyer, 10/2010
[21] 'Legal service DVD drama focus on people's rights', Koori Mail 480 p.26
[22] NSW Aboriginal Legal Service newsletter, 3/2011
[23] 'The struggle to achieve real justice', Koori Mail 506 p.25
[24] 'Australia 'weak on rights'', Koori Mail 401 p.84
[25] 'High court ruling: social disadvantage should be considered in sentencing', The Guardian 2/10/2013
[26] 'Judges told to consider history when sentencing', SMH 3/10/2013
[27] Ray Jackson, email 4/10/2013