Black people, white law

High Indigenous prison rates might in part be based on a clash between white law and traditional culture. 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.

White law needs to consider black law

When white courts decide what Indigenous offenders must or must not do they often ignore or are unaware of black law and customs. Sentences or bail conditions might be culturally inappropriate.

"The old men are angry"

Aboriginal men who still value the old traditional and ceremonial ways "are angry" because they see people going into gaol and then coming back into their communities [3]. Under traditional Aboriginal law these people wouldn't be coming back, they'd have been expelled from their groups for what they did. Traditionally, if you were travelling on your own, everyone knew you had done something severely wrong. Spearing scars sometimes revealed this status.

For many old people it is hard to reconcile their view of traditional law with the rules of white law.

Inappropriate bail conditions

An Aboriginal woman stabbed her brother after he raped her in a town camp. The strict conditions of bail were that the woman had to return to her community and remain there until the trail [5].

But these bail conditions were culturally inappropriate because under traditional Aboriginal law the woman would have been punished with a customary beating because her female relatives would not accept the allegation of sibling rape.

The woman's caseworker managed to negotiate a more flexible and satisfactory bail condition.

Jailed for true love

The Sydney Morning Herald reported the following story [6].

It was true love. Everybody agrees on that. The girl and the boy first met in 2006 at a sports weekend. She was 12 and he was 16.

Soon after they were married in the traditional Aboriginal way and began living as husband and wife in a remote outstation. The couple was in love and their families supported the relationship. Under complex intermarriage rules Aborigines have abided by for centuries (involving your totem, skin name, subsection and moiety), it was a good match-up.

But the boy ended up in jail facing a 16-year sentence following the Australian government's Northern Territory intervention which started in 2007.

Five months after teams of soldiers and police entered remote communities the boy impregnated the girl. By then he was 18 and she was 14. They had been living together for almost two years. She gave birth to a boy.

Previously Northern Territory police would have turned a blind eye to the fact that the boy had sexual intercourse with an underage girl–an offence under NT law–because it was accepted and even encouraged in Aboriginal culture.

But the intervention now strictly enforced NT's laws because police were tasked with "hunting down pedophiles and stamping out the sexual abuse of Aboriginal children" [6].

After the girl proudly named the boy as the father of her baby the boy was charged. After months in jail he pleaded guilty in "a world with laws he didn't fully understand".

The offender is an impressive young man with a good prior record and a good history of employment. —Justice Stephen Southwood [6]

The white law holds that 14 is too young for girls to be making decisions about sexual intercourse. Justice Southwood wants young men to learn that "the wider community strongly disapproves" of such "crimes".

The boy was sentenced to two years in jail on a suspended sentence.

The reality of what's happened [in the Northern Territory] is that such pedophiles have not being found. What, though, the police have come across are examples of basically young men having consensual sex with teenage girlfriends. —Glen Dooley, principal lawyer for the Northern Territory's main Aboriginal legal aid agency [6]

No more faith in white law

Many Aboriginal people have lost their faith in the white justice system. Older generations still remember the mission days when the sighting of any police vehicle meant their children were at danger of being taken away.

Today Indigenous people are often angry because many months pass between a crime committed against them and police or court action.

When an Aboriginal man was attacked by three men and a woman in January 2010, police still hadn't laid any charges in April that year.

Aboriginal people feel that if there had been Aboriginal attackers and a white victim police would have acted swiftly. "If this was a non-Indigenous person off to the shops who was pulled up and bashed by three Aboriginal men and one Aboriginal woman, I am sure charges would have been laid and they would have been incarcerated," says Indigenous academic Stephen Hagan [7].

Mark Copeland from the Catholic Social Justice Commission of the Diocese of Toowoomba agrees. "If it were four Murris [Aboriginal language group] they would still be locked up because they would be seen as a risk to the community."

A magistrate judging the case of Mulrunji Doomadgee who died from injuries caused by a senior police officer, noted that police were colluding to protect one of their own and compromising proceedings. He suggested that officers gave tip offs and allowed the accused to come up with 'innocent explanations' to counter damaging claims by witnesses [8].

Justice delayed is justice denied. —Peter Pyke, former Queensland police officer [7]

Judgement by His Peers - Painting by Gordon Syron

What if a white person would be trialled by a black jury? In his painting Judgment by His Peers Aboriginal artist Gordon Syron reversed the usual situation of an exclusively white court judging a black person.

Aboriginal people lack understanding of white law

More than 90% of people in Arnhem Land, NT, could not answer basic legal questions and think white society is 'lawless' [1]. In some Aboriginal communities people are unaware that rape is considered illegal. 95% of Yolngu people could not explain the 30 most commonly used English legal terms, such as 'bail', 'commit', 'arrest' or even 'guilty'. Even 90% of community leaders, school teachers and council representatives had no understanding of these legal terms.

This might explain why in 2008 over 80% of the Northern Territory prison population was Aboriginal. Many of them might as well be innocent because they didn't understand what 'guilty' meant.

"People thought that pleading guilty actually got them through the court quickly and they didn't go to jail," says Richard Trudgen, CEO of the Aboriginal Resource and Development Services [1].

"When they realised what the term guilty meant they were able to identify some of the things that they were convicted of that they never had anything to do with."

When asked about their lawyer helping them, many [Aboriginal people] were surprised to hear that this person was 'on their side'.—findings in the An Absence of Mutual Respect report [1]

Another reason why Aboriginal people make 'false' statements in court is that they are hearing-impaired through a cycle of poor health.

There is a clear relationship between hearing loss and early Indigenous justice problems [9] —90% of Indigenous inmates in Darwin Correctional Centre suffer from hearing loss.

"I plead guilty"

An Indigenous man, called to give evidence about a traffic accident he had seen, steps into the witness box and announces "I plead guilty".

This story was told by a Melbourne lawyer from his time working in an Aboriginal legal service in the Queensland bush [2].

Not quite bailed out

"ARDS [Aboriginal Resource Development Services] was contacted by the family of a young Yolngu man. The family had reason to believe the young man was in Berrimah prison. This was confirmed and a visit arranged.

As a result... it became clear that a warrant for this man's arrest had been active for some time due to a breach of bail - he had failed to return to court He came to the notice of police and they exercised the warrant.

His understanding of 'bail' was that he had been 'bailed out' of trouble and that was the end of the matter. He was adamant that he was not required to return to court. To make matters worse for him, when the police did exercise the arrest warrant, the Yolngu man, who felt that he was being very unfairly dealt with, resisted arrest and punched the police officer.

As a result, additional to the original charges, he now had some more charges, all due to serious communication failures between the courts and this Yolngu man."

The above example is quoted from Absence of Mutual Respect report (pdf) (page 25), a report about Aboriginal people's difficulties in dealing with white courts.

These examples illustrate how critical advocacy and community legal education are.

Half the time our clients break the law because they don't understand it. —Priscilla Collins, North Australian Aboriginal Justice Agency (NAAJA) [4]

Resources

The movie Black And White chronicles the events surrounding the death of a young white girl. An Aboriginal man is the prime suspect, but a white lawyer thinks he's innocent.