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.
- Percentage of the prison population in the Northern Territory which is Indigenous . The NT has the highest incarceration rate per 100,000 people .
- Percentage of the prison population in Australia which is Indigenous . Aboriginal people make up 2.5% of the Australian population.
- Times an Aboriginal person is more likely to be locked up than non-Indigenous Australians .
- Percentage of youth in prison who have been sexually assaulted as children .
- Percentage by which the Indigenous imprisonment rate of NSW rose between 2001 and 2008 .
- 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. 
- Percentage of people involved in police custody incidents who are Aboriginal. 
- Percentage of Australia's Aboriginal prison population who is male. 
- Daily rate for an Executive Room at the Hilton in Sydney, including breakfast buffet .
- Daily cost to the Australian government to keep a prisoner locked up .
- Money the NSW government spends each year to maintain its prison system .
- Times an Aboriginal child aged between 10 and 14 is likely to be charged by police .
- 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 .
- Average sentence length of Indigenous prisoners in years (non-Indigenous: 5.3) .
- Percentage of Aboriginal juveniles who end up in court. Same figure for non-Indigenous juveniles: 28% .
- 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. .
- Minimum number of Indigenous people being arrested and taken into custody every week in NSW .
- Percentage of Aboriginal children who have a family member who has spent time in gaol. 
- Percentage of Aboriginal homicide offenders in 2007-08. Aboriginal population share: 2.3%. 
Aboriginal youth are overrepresented in jails. Detention statistics make experts talk about a “state crisis”.
High detention rates have many causes. Being at the wrong place at the wrong time is sometimes enough.
Reducing Aboriginal incarceration rates
Numerous measures have been proposed to reduce incarceration rates of Aboriginal Australians.
Programs range from spiritual healing programs to justice reinvestment.
Improving Aboriginal prison conditions
Prisons need to cater for specific cultural needs of their Aboriginal inmates and avoid ‘structural racism’. Aboriginal-sensitive standards can help.
Aboriginal prison rates
Aboriginal and Torres Strait Islander people are massively overrepresented in the criminal justice system of Australia.
In 2008 Aboriginal people represent only 2.3% of the total population, yet over 28% of Australia’s prison population are Aboriginal.
Black people, white law
Aboriginal people following traditional law get caught in white law, and some do not fully understand the white man’s law system in the first place.
Mental health at its worst in prison
Already a disadvantaged group in Australia, Aboriginal people’s mental health suffers badly when they are imprisoned.
Up to 93% of Aboriginal detainees have some form of mental illness.
Justice not without issues
Justice is not without issues for Aboriginal people.
Many wonder what the outcome would have been had the plaintiff not been Aboriginal.
Aboriginal youth programs can work
Youth programs for young Aboriginal people can break a cycle of violence and get them in touch with their culture.
These programs give them self-respect and self-confidence, and allow them to become successful role models for others.
Circle sentencing tries to avoid gaol time for Aboriginal offenders by bringing them together with elders.
The offender must plead guilty, and punishments are not mild. The system has many benefits for all involved.
Tribal punishment, customary law & payback
Aboriginal tribal law is often seen as harsh and brutal, but it ensured order and discipline. Payback is the most known form of customary law.
Payback has survived until today and is still practiced which leads to conflicts between white law and tribal law.
Royal Commission into Aboriginal deaths in custody
A royal commission in 1987 investigated Aboriginal deaths in custody over a 10-year period, giving over 330 recommendations.
Its recommendations are still valid today, but very few have been implemented. Every year, Aboriginal people continue to die in custody.
Australia’s mandatory sentencing with its exact penalty system has been labelled racist by the UN.
After being sentenced youths are likely to enter a criminal career, and some commit suicide.
Only the Northern Territory has abolished mandatory sentencing.
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 
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” . But no-one took notice.
In 1999 the full bench of the Federal Court  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.” 
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 .
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 .
Australia’s first Aboriginal Legal Service (ALS)
Aboriginal activists and lawyers established the Aboriginal Legal Service (ALS) in 1970 in the Sydney suburb of Redfern.
It was staffed by volunteers who provided free legal advice and representation to the Aboriginal people of inner Sydney.
In 1971, the service received its first government grant for the salaries of a full-time solicitor, a field officer and a secretary. In 2010, 18 lawyers were working for th ALS.
The ALC was Australia’s first free legal service, setting the model for mainstream community legal aid. There are now legal services all across Australia. 
What does the Aboriginal Legal Service do?
The ALS assists Aboriginal people in many ways in and outside the courtroom :
- Custody Notification Service. By law, the police must notify the ALS when an Aboriginal person is arrested. The lawyer speaks with the person and gives advice. Read more about the Custody Notification Service.
- Prisoner Support Unit. The Prisoner Support Unit aims to prevent Aboriginal deaths in custody by visiting and checking in with prisoners. It assists in their rehabilitation, provides crisis support, helps prisoners stay in contact with their families and when they are released in unfamiliar towns.
- Community legal education. The ALS develops, produces and delivers community legal education activities.
- Aboriginal Field Officers. Field Officers assist ALS lawyers in talking to Aboriginal clients and families, arrange for referrals, and provide law and social justice education in the community.
- Family Violence Officers. The ALS works with people who have become victims of family violence. Family Violence Officers can also arrange referrals.
- Law reform. The ALS advocates for the protection of the rights of Aboriginal people, in particular coronial reform and other advances in the criminal justice system.
Fact Melbourne’s William Cooper Justice Centre has been named after a Yorta Yorta man from the Cummeragunja Mission. Mr Cooper founded the Australian Aborigines League, the first political organisation for Aboriginal people. He also helped establish the Day Of Mourning, and in 1938 led a protest of Aboriginal people who walked to the German consulate in Melbourne to denounce the treatment of European Jews by the Nazis. 
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 .
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 . However, there were vast differences between communities.
Police in some communities are so under-resourced that police officers refuse to continue working there .
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.
Last updated: 22 January 2013 | Out of respect for Aboriginal culture I use Indigenous sources as much as possible.
 'NSW ALS prepares to mark 40 years', Koori Mail 493 p.35
 'Just honour for Cooper', Koori Mail 483 p.18
 'Mixed findings', Koori Mail 474 p.15
 'NT death cop admits mistake', Koori Mail 412 p.41
 'Inmate levels worsen', Koori Mail 454 p.14
 'New approach call over jail numbers', Koori Mail 498 p.9
 'More in prisons', Korri Mail 467 p.19
 'Aboriginal sovereignty movement asks UN to deny Australia a seat on the Security Council', press release, Michael Anderson, 28/9/2012
 Nulyarimma v Thompson (includes two corrigenda dated 2 September 1999)  FCA 1192 (1 September 1999)
 'Books plan locked in', Koori Mail 473 p.6
 'Enquiry examines jailing of juveniles', Koori Mail 472 p.37
 'Killings a a far higher rate: Report', Koori Mail 492 p.8
 'Mixed findings in deaths report', Koori Mail 492 p.10
 'More can be done - report', Koori Mail 492 p.37
 www.hiltonsydney.com.au, visited 6/6/2010
 Koori Mail 394 p.16
 'Push for recidivist programs', SMH 6/3/2010
 Koori Mail 522 p.20
 'Reconciliation in Parliament', flyer, 10/2010
 'Legal service DVD drama focus on people's rights', Koori Mail 480 p.26
 NSW Aboriginal Legal Service newsletter, 3/2011
 'The struggle to achieve real justice', Koori Mail 506 p.25
 'Australia 'weak on rights'', Koori Mail 401 p.84
 'Justice for Aboriginal people - the Koori way', flyer, Aboriginal Legal Service NSW/ACT