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).

References

• ABC, Bush Law, Television Show. Aired on Australian television in 2009.
• ABC Lateline, Transcript, Retrieved from: http://www.abc.net.au/lateline/content/2006/s1639133.htm, Broadcast: 15/05/2006
• Abbott, T. (2015), in Curtin, R. and Norman, J. Tony Abbott a ‘disgrace’, says Federal Opposition after comments that living in remote Indigenous communities was a ‘lifestyle choice’. Retrieved from: www.abc.net.au/news/2015-03-10/tony-abbott-backs-decision-to-close-wa-indigenous-communities/6295296
• ALRC Report 31, (1986). Australian Law Reform Commission. Retrieved from: https://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC31.pdf
• ALRC, (1998). ‘Traditional Aboriginal Society and Its Law’ in Edwards W. H. (ed), Traditional Aboriginal Society. Melbourne: MacMillan, 2nd ed.
• Australian Aboriginal Affairs Council, (1976). Report on Arnhem Land, Canberra: The Council. ISBN: 064293441X
• Australian Bureau of Statistics, (2017). 4517.0 – Prisoners in Australia. Retrieved from: www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4517.0Main+Features12017?OpenDocument.
• Bell, D. (1997). In the Age of Mabo: History, Aborigines and Australia. American Anthropologist, 99(2), 450-451. http://dx.doi.org/10.1525/aa.1997.99.2.450
• Berndt R. M. & Berndt C. H., (1988). The World of the First Australians: Aboriginal traditional life past and present. Canberra: Aboriginal Studies Press, 4th ed.
• Blagg, H. (2008). Crime, aboriginality and the decolonisation of justice. Queensland: Hawkins Press.
• British House of Commons Report, (1837). Select Committee on Aborigines (British Settlements), House of Commons Parl Paper 425, 84. In ALRC Report 31, (1986). Australian Law Reform Commission. Retrieved from: https://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC31.pdf
• Bucerius, S., & Tonry, M. (2014). The Oxford handbook of ethnicity, crime, and immigration. Oxford: Oxford University Press.
• Calma, T. (2006). The Integration of Customary Law into the Australian legal system. Presentation, Globalisation, law and justice seminar, Perth. Retrieved from: https://www.humanrights.gov.au/news/speeches/integration-customary-law-australian-legal-system-calma
• Coombes and Williams, (1986), in ALRC Report 31, (1986). Australian Law Reform Commission.
• Debelle, B. (1997). ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M & Rigney D (eds), Indigenous Australians and the Law. Sydney: Cavendish.
• Goldflam, R. (2013). The (non-)role of Aboriginal customary law in sentencing in the Northern Territory. Retrieved from: www.austlii.edu.au/au/journals/AUIndigLawRw/2013/6.pdf
• LRCWA, (2003). Thematic Summaries of Consultations, Broome.
• LRCWA, (2005). Aboriginal Customary Laws Discussion Paper. State Solicitors Office of Australia.
• The Native Title Act 1993 (Austl.).
• Rose, D. (1987). Consciousness and responsibility in an Australian Aboriginal Religion in Edwards, W. Traditional Aboriginal society: a reader, South Melbourne: Macmillan, p. 257-269.
• SCLCA (2006). Report – Crimes Amendment (Bail and Sentencing) Bill, Parliament of Australia. Retrieved from: http://www.aph.gov.au/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2004_07/crimes_bail_sentencing/report/report_pdf.ashx
• United Nations, (2018), Universal Declaration of Human Rights. Retrieved from: www.un.org/en/universal-declaration-human-rights/
• Western Australia v Munda (2012) 221 A Crim R 548, [95] (Buss JA)
• Woodward, A. (1973). First Report. Aboriginal Land Rights Commission. ISBN: 0642003327