Aboriginal Law in the Australian Criminal Justice System

Introduction

A complex relationship exists between Aboriginal and Torres Strait Islander people and the criminal justice system in Australia (Calma, 2006). Indigenous people are over-represented in prisons and as victims of crime (ABS, 2017). Issues arise between the police and Aboriginal people, as well as when Aboriginal offenders appear before court and are sentenced (Bucerius & Tonry, 2014). There are different types of formal and informal Indigenous justice, and many Indigenous communities are left to enforce justice themselves (ABC, 2006). Should Aboriginal law, in part or in whole, be applied to Indigenous people, in particular areas or in general, or to people living in traditional communities only? Should existing criminal cases involving Indigenous offenders be able to apply Aboriginal law? Should Aboriginal communities be able to apply their own law to the Indigenous people living there for punishment and rehabilitation? These questions highlight some of the complexities of the issue (ALRC Report 31, 1986). Aboriginal law governs a large part of Indigenous people and their lives (Rose, 1987). There is not one version of Aboriginal law, and it continues to be a changing system applying to different groups of Aboriginal people (REFERENCE).

This essay will compare issues relating to the incorporation of
Indigenous law into the Australian criminal justice system. Aboriginal law has
already been acknowledged by the Australian crimal justice system, as can be
seen by the Native Title Act 1993, and the case of Mabo v Queensland (1992). There
is currently an over-representation of Indigenous offenders in prison, and
Aboriginal law could address this problem because there is evidence that
Indigenous people feel animosity toward the Australian police and the criminal
justice system (ABC, 2009), and would be more comfortable with Aboriginal law (ALRC
Report 31, 1986). Many Indigenous communities are managing their own laws and
land themselves, putting them in a position where Aboriginal law is already
part of the criminal justice system in remote communities (ABC, 2006). It is
unjust for Aboriginal land owners to have been held accountable for European
law, Aboriginal people had their own system of law and government that should
have been acknowledged (ALRC Report 31, 1986; Native Title Act, 1993; Calma,
2006). Ultimately, the decision needs to be made by Aboriginal and Torres
Strait Island people themselves without western values being projected onto
Indigenous people (ALRC Report 31, 1986).

Arguments for incorporating Aboriginal law into the Australian
criminal justice system include: addressing; assisting in relationship between
law enforcement and Aboriginal people, the fact that many communities are
managing their own law anyway; and, the moral implications of Aboriginal law
existing before European invasion so should be respected and honoured (Native
Title Act, 1993; Calma, 2006). Mitigating factors exist to incorporating
Aboriginal law into the Australian criminal justice system, include the possible
costs and that Aboriginal law and key differences in understanding may be
difficult to incorporate with modern life in Australia (LRCWA, 2005). Indigenous
communities are requesting to incorporate their laws into the Australian
criminal justice system as will be seen by the Yirrkalla scheme case study
(Woodward, 1973; ALRC Report 31). Lastly the issue of human rights will be
considered, and the argument that despite contradictions in the idea of
individual human rights, the incorporation of Aboriginal law will be more in
line with the humane treatment of Indigenous people in Australia (United
Nations, 2018; ALRC Report 31, 1986; ALRCD, 1998).

Native Title

According to the Australian Human Rights Commission (2015), Native
Title is the rights of Indigenous Australians to own and govern land, which is
central to their religion, beliefs, and well-being. It is the Native Title Act (1993) that recognises
Aboriginal laws and advocates for those laws being part of Indigenous peoples’
human rights in Australia. These laws are tied in with the land and with
traditional law and management as will be discussed further.

Mabo v Queensland

In the case of Mabo
v Queensland (1992), the defendant challenged the government in his right to
land as a traditional Indigenous owner. The decision found in favour of the
defendant and recognised his right to land and right to Aboriginal law
governing it. Although the case did not define what Aboriginal law would be,
and only defined it in the sense of land entitlements (Bell, 1997). This case
is important in a similar way to the Native Title Act 1993, in that it
recognises within Australian law the Indigenous entitlement to land, and to
have their law governing it.

Indigenous Over-Representation
in Prison

The number of Aboriginal and Torres Strait Islander people in
Australian prisons has increased by almost 75 per cent over the past decade.
Indigenous people make up 27.4% of the prison population, while only comprising
3.3% of the general population (ABS, 2017). The high rate of Indigenous
incarceration is a key argument for incorporating Aboriginal and Torres Strait
Islander law into the Australian criminal justice system (Calma, 2006).
According to the Australian Law Reform Commission (1986) Aboriginal law is
empowering to Indigenous communities – it is a form of justice and social
organisation that upholds traditions which have been in operation for thousands
of years. It makes sense therefore, that applying Aboriginal law may result in
practices more effective in reducing recidivism, and Aboriginal incarceration
rates. Retaining a sensitivity to culture in the sentencing of Indigenous
offenders is one way of incorporating traditional opinions and laws (SCLCA,
2006).

Existing forms of
Aboriginal Law

Various types of formal justice services for Indigenous offenders
already exist in Australia. Some courts in regional centres set aside a few
days per month to sentence Indigenous offenders – and practices exist in remote
Indigenous communities utilising the input of Elders or community
representatives to manage Indigenous justice (Bucerius & Tonry, 2014). Unofficially,
Indigenous communities are frequently enforcing justice themselves, as ABC
(2006) explained – most Indigenous communities across Central Australia do not
have police presence, and for many communities the
nearest police station is more than two hours away. As will be illustrated in
the Yirrkala scheme case study, there are examples of requests made by
Indigenous people to self-govern and be supported in doing so by local
authorities. This is a key argument for the incorporation of Indigenous justice in Australia – it corresponds with the
moral implications of Aboriginal law existing before European invasion and the
importance of recognising it.

Criminal Justice in
Indigenous Communities

The Law Reform Commission of Western Australia (2006, p. 192) found
that “historically Aboriginal people have been subject to oppressive treatment
by police. Consequently, Aboriginal people often distrust and resent police.
During consultations many Aboriginal people complained about the general lack
of respect from police for Aboriginal people and Elders.” There have been
reports of Australian police disparaging Indigenous sacred spaces, and a
lacking in culturally appropriate behaviours (ABC, 2011). Integrating
culturally sensitive practices into the police force is essential for harmony
between police and Aboriginal communities (Calma, 2006). It has been suggested
that this could occur through education – of police – about the significance of
Indigenous law, as well as educating Indigenous people about the significance
of individual human rights, as can be seen in the
Australian system of criminal justice (ABC, 2011; ALRC Report 31, 1986)

Incorporating
Aboriginal Law into Australia

The questions of
whether or not existing courts should have the capability to apply Aboriginal
law to Indigenous people, and if Aboriginal communities should be given the
power to apply their own law to Aborigines have been explored – when the
British invaded Australia these same questions were asked, and the answer was
obvious then and still is, that “applying British law to the Aborigines would
be absurd and unjust” (‘British House of Commons Report’, 1837 in ALRC Report
31, 1986, p. 5). Despite this, what followed was that Aboriginal people were
treated in the same way as if they were British subjects, with no recognition
given to Aboriginal law or traditions (ALRC Report 31, 1986). Australian law
was applied to Aboriginal people at all levels, and this has had a substantial
negative effect on Indigenous people and communities (Blagg, 2008). The
destruction of traditional values, and lack of acknowledgement of Aboriginal
law and governance – makes the task of recognising Aboriginal law two hundred
years later much more difficult than it would have been if Indigenous people
had been originally treated as a distinct government with their own set of laws
(ALRC Report 31, 1986).

Acknowledging the points above it is clear that there is great
complexity involved in combining Aboriginal and Torres Strait Islander law into
the Australian criminal justice system. However there are some clear
opportunities to enable this. A report created by the Standing Committee on
Legal and Constitutional Affairs (SCLCA) stipulates that the Bail and
Sentencing Act should retain “cultural background” as being a factor to be
taken into consideration when sentencing (SCLCA, 2006). This is one of the key
areas that Aboriginal law could operate in an Australian criminal justice context.
This method could also be enhanced, as has already discussed, by educating both
law enforcement on traditional law and educating Indigenous people on the
concept of individual human rights (Calma, 2006).

There are some key distinctions between Aboriginal law and
Australian law. For example, under Australian law there is a clear separation
between legal matters and religious, social or moral standards (Debelle, 1977).
In contrast, traditional Aboriginal law is inseparably linked to Aboriginal
religion (Rose, 1987). The Dreamtime provides the source of acceptable codes of
behaviour in all aspects of life, as observed by Berndt and Berndt (1983). Aboriginal
law does not differentiate between standards of social behaviour, sacred
matters and binding rules: they are all ‘the law’ (Debelle, 1997).

The concept of responsibility in Aboriginal law differs from the
Australian criminal justice system. In Australian law, fault is the key
determiner for responsibility, and fault includes intention, recklessness, and
accident. Aboriginal law sometimes considers these as only elements of
responsibility, with the main focus of responsibility depending on causation
(ALRC, 1988). For example, if somebody were to witness a traditional ceremony
that they were forbidden from seeing, even if they happened upon it by
accident, they would be guilty of committing a crime and liable for punishment,
regardless of their motive and intent (ALRC, 2003). In the Land Rights
Commission WA consultations, it was discovered that in Aboriginal law it was
important what you did, not why you did it (LRCWA, 2003). Aboriginal law can
seem strict by Australian law standards, and it is important to be aware of
these distinctions.

The use of physical punishments in contemporary Aboriginal society
is a major source of conflict with Australian law, however – incorporating
Indigenous law into the Australian legal system is still important to avoid an
offender being punished twice. For example, in the case of Western Australia v Munda (2012), a man from Walmajarri, who was
part of a traditional Aboriginal community, was sentenced for the manslaughter
of his de-facto wife. The judge considered the likelihood that upon release and
return to the traditional community the man would suffer punishment under
Aboriginal law and would be struck with sticks or spears on the arms legs and
body, as a form of ‘payback’ for his offense. The idea of not being punished
twice for the same crime is important in Australian culture and a strong
argument for the inclusion of Aboriginal law into the Australian criminal
justice system (Goldflam, 2013).

While there are high costs involved for supporting remote communities
(Abbott in Curtin & Norman, 2015), as has already been evidenced, it is
vitally important for reconciliation that Aboriginal law be recognised in
Australia, with the input of Indigenous people being at the forefront of how
that needs to occur (ALRC Report 31, 1986).

Case Study – Yirrkala Scheme

Yirrkala is
Aboriginal land in the South East of the Northern Territory (ALRC Report 31,
1986). In 1974 the Aboriginal leaders from Yirrkala and Groote Eylandt appealed
to the local council to help them with crime in the community particularly that
brought about by drunkenness. They raised the issue with the Commonwealth
government and requested to have limited powers for arrest and detention of the
Indigenous people within the community, uninhibited by outside police
intervention. They also asked for the offender to then have their charges heard
by a magistrate of Aboriginal people or a justice of the peace (Coombes and
Williams, 1986). The reason for this was to mitigate for strongly held
objections by Aboriginal people in the community to the white police and court
system, that they perceived as unfair and imposing law according to European
standards which held little similarity with their own (Australian Aboriginal
Affairs Council, 1976, p. 17-21). According to Woodward (1973), the idea behind
this was not to answer the question whether Aboriginal people had land rights
and the right to self-govern with their own laws, because it was already clear
that they did. The question was how best to implement these rights for the
Aboriginal people (Woodward, 1973). This case study illustrates that Aboriginal
and Torres Strait Islander people have laws and need recognition of those laws
by the Australian government in order that they may best govern themselves and
their people (ALRC Report 31, 1986).

Human Rights

It is vital to ensure that every Australian enjoys basic human
rights. International human rights standards sometimes conflict with the right
of Indigenous people to retain their traditional laws and cultural practices
(United Nations, 2018; ALRC Report 31, 1986). For example the Indigenous
understanding of collective community, and use of physical punishment is common
in traditional Aboriginal community (ALRC, 1998), and these can be opposed by
international law – while there are these discrepancies, the matter is complex,
and it can be argued that achieving fair treatment and equality for Aboriginal
people, involves recognising Aboriginal law, thus supporting human rights (ALRC
Report 31, 1986).

Conclusion

The Native Title Act (1993) and other case law – recognises that
Indigenous Australian societies possess robust and comprehensive systems of
law; however Aboriginal law is part of a wider paradigm, one that is different
from contemporary Australia (Rose, 1987). There is a clear need for educating
Australian law enforcement on Indigenous law and educating Aboriginal
communities on individual human rights and the basic building blocks of
Australian Law (Calma, 2006; ALRC Report 31, 1986). While complex, doing this
is vital for addressing Indigenous justice issues, and reconciliation. Incorporating
Aboriginal law into the Australian legal system, and the final word on how to
best go about this needs to be spoken by Indigenous people themselves (ALRC
Report 31, 1986). In doing this, Australia will be working towards a more
humane treatment of Aboriginal people, ensuring human rights for all Australian
people (United Nations, 2018; ALRC Report 31, 1986; Native Title Act, 1993).

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