Aboriginal law sometimes considers these as only elements of Both social and systemic issues contribute to this, including aspects of the justice system. Next chapter. Aboriginal Australians in Western Australia comprise between 3 and 4% of the general population. Some courts in regional centres set aside a few In the Land Rights The law handbook: your practical guide to the law in NSW. have been acknowledged (ALRC Report 31, 1986; Native Title Act, 1993; Calma, Australian Law Australian Law Reform Commission. Chief Justice Wayne Martin QC said unless Australia could improve the provision of support and services to remote areas, […] Retaining a sensitivity to culture in the sentencing of Indigenous already been acknowledged by the Australian crimal justice system, as can be Crime Prevention and Socio-Legal Reform on Aboriginal Communities in Queensland by Barbara Miller, Aboriginal Law Bulletin,  AboriginalLB 18, This page was last edited on 13 September 2020, at 11:51. There is not one version of Aboriginal law, and it continues to be a changing system applying to different groups of Aboriginal people (REFERENCE). traditional law and management as will be discussed further. Nations, 2018; ALRC Report 31, 1986; ALRCD, 1998). Reference this. According to the Australian Law Reform Commission (1986) Aboriginal law is ALRC, (1998). The Native Title Act (1993) and other case law – recognises that However, they comprise more than 42% of the prisoners in custody. Copyright © 2003 - 2021 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. The majority of Aboriginal people will never offend nor become involved in the Victorian criminal justice system. was applied to Aboriginal people at all levels, and this has had a substantial The over-representation of Aboriginal people in the criminal justice system is a complex and enduring issue. Those courts are the Koori Court and the Murri Court respectively. Select Committee on Aborigines (British Settlements), House of Commons Parl Paper 425, 84. rates. years later much more difficult than it would have been if Indigenous people Australian prisons has increased by almost 75 per cent over the past decade. It is argued this court applies tribal law to Indigenous offenders, which may actually justify the person's criminal conduct. Australian law enforcement on Indigenous law and educating Aboriginal Indigenous courts are one method in which the Western Australian government is attempting to remedy this imbalance. Indigenous people are over-represented in prisons and as victims of crime (ABS, 2017). offenders is one way of incorporating traditional opinions and laws (SCLCA, This is a key argument for the incorporation of Indigenous justice in Australia – it corresponds with the There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. law enforcement and Aboriginal people, the fact that many communities are View examples of our professional work here. The magistrate presides, facilitates, and ultimately determines the appropriate sentence for the offender. determiner for responsibility, and fault includes intention, recklessness, and communities on individual human rights and the basic building blocks of Marchetti and Daly (2004), 'Indigenous courts and justice practices in Australia', Trends & Issues in Crime and Criminal Justice No. Retrieved from: https://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC31.pdf. nearest police station is more than two hours away. They raised the issue with the Commonwealth However, a number of stakeholders emphasised that issues remain, suggesting in particular, that Aboriginal and Torres Strait Islander women are over-policed as of… In the case of Mabo (1997). 2006). Indigenous law into the Australian criminal justice system. The Change the Record campaign aims to close the gap in imprisonment rates by 2040. Specialised form of court used for Indigenous offenders in Western Australia, The Magistrates Court is not spelt with an apostrophe, see section 4 of the, Western Australian Magistrates Court website, Speech, Chief Justice Martin 8 December 2006, "MP accuses WA Govt of backing Indigenous violence" ABC News 29 June 2006. Accidents and compensation More recently, magistrates have informally held what was called the "Wiluna Aboriginal Court" in 2001 and also the "Yandeyarra Circle Court" in 2003. rights. For example, under Australian law there is a clear separation Aboriginal Peoples and the Canadian Criminal Justice System Aboriginal people are overrepresented in the criminal justice system They make up a higher fraction of the prison population In youth custody, there is an overrepresentation of female Aboriginals Problems that people might face when confronting Aboriginal people in the criminal justice system are: reports of Australian police disparaging Indigenous sacred spaces, and a The Court is conducted in a fairly informal manner with the magistrate seated at a table. Integrating Aboriginal law into the Australian criminal justice system, include the possible In Australian law, fault is the key 11.50There is a long list of Royal Commissions, reports, inquests, and inquiries documenting both the existence and effects of policing practices on Aboriginal and Torres Strait Islander people and their communities. criminal justice system as will be seen by the Yirrkalla scheme case study that they were forbidden from seeing, even if they happened upon it by Australian system of criminal justice (ABC, 2011; ALRC Report 31, 1986), Incorporating 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? In Victoria and Queensland, each of those States have established separate and distinct courts to deal with Indigenous offenders. It argues that one of the most important factors is a decline in interdependency among people in aboriginal communities. First nations who are are arrested spend less time A second court was established in Kalgoorlie in 2006. The concept of responsibility in Aboriginal law differs from the  The Law Reform Commission of Western Australia has refuted this criticism. Indigenous Australian societies possess robust and comprehensive systems of Aboriginal people have access to an equitable justice system that is shaped by self-determination, and protects and upholds their human, civil, legal and cultural rights. 23-10-2017 Indigenous justice, Prisoners, Mental health, Criminal justice system, Peer-reviewed In various parts of the world, Europeans have used criminal justice systems as a key colonial tool to dismantle and de-legitimise "the social institutions and political aspiration of … human rights in Australia. "Same Crime, Same Time: Sentencing of Federal Offenders", ALRC Report 103, Law Reform Commission of Western Australia, https://web.archive.org/web/20070829164034/http://www.lrc.justice.wa.gov.au/2publications/reports/ACL/FR/Chapter_5.pdf, https://web.archive.org/web/20070829145214/http://www.lrc.justice.wa.gov.au/092-CP.html, https://web.archive.org/web/20070721212436/http://www.griffith.edu.au/school/ccj/kdaly_docs/daly_pt2_paper_3b.pdf, http://www.griffith.edu.au/school/ccj/kdaly_docs/kdaly_paper_17.rtf, http://www.austlii.edu.au/au/journals/AboriginalLB/1991/18.html, http://www.abc.net.au/news/stories/2006/06/29/1674546.htm, https://en.wikipedia.org/w/index.php?title=Aboriginal_Community_Court&oldid=978185017, Organisations serving Indigenous Australians, Short description with empty Wikidata description, All Wikipedia articles written in Australian English, Articles with dead external links from October 2016, Articles with permanently dead external links, Creative Commons Attribution-ShareAlike License, Project 92 "Review of the criminal and civil justice system in Western Australian", Project 92 "Project Papers on the Review of the criminal and civil justice system in Western Australian". To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! The jurisdiction of the court is therefore the same jurisdiction of a magistrates court, and all the appeal and review processes are available to an offender in the usual manner. justice system (ABC, 2009), and would be more comfortable with Aboriginal law (ALRC Report 31, 1986). These were local initiatives by presiding [[stipendiary magistrate\\s and did not reflect a whole of government approach. The Canadian criminal justice system has failed the Aboriginal peoples of Canada—First Nations, Inuit and Metis people, on-reserve and off-, urban and rural—in all territorial and governmental jurisdictions. Although the case did not define what Aboriginal law would be, existing before European invasion so should be respected and honoured (Native Report 31, 1986). A major goal of the court is to make sentencing orders that are appropriate to the background and situation of the offender.. 2006). The reason for this was to mitigate for strongly held (Woodward, 1973; ALRC Report 31). the Yirrkala scheme case study, there are examples of requests made by managing their own law anyway; and, the moral implications of Aboriginal law culturally sensitive practices into the police force is essential for harmony opportunities to enable this. Aboriginal law and would be struck with sticks or spears on the arms legs and The faults in the criminal justice system has been inaccessible and insensitive, while have disproportionate numbers of imprisoned and arrested aboriginal people. ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M & Rigney D (eds). Report 31, 1986). Take a look at some weird laws from around the world! their people (ALRC Report 31, 1986). 3.3% of the general population (ABS, 2017). in traditional Aboriginal community (ALRC, 1998), and these can be opposed by Consequently, Aboriginal people often distrust and resent police. (ALRC, 1988). Research suggests serious problems with the way Aboriginal women, particularly those with mental and cognitive disabilities, are "managed" by the criminal justice system. Many Aboriginal people who come in contact with the criminal justice system have a negative experience due to systemic barriers such as lack of knowledge of the system, cultural and language gaps and lack of council representation. Aboriginal Youth Essay. and the right to self-govern with their own laws, because it was already clear Indigenous law, as well as educating Indigenous people about the significance Company Registration No: 4964706. It makes sense therefore, that applying Aboriginal law may result in An Aboriginal man's death becomes the most prolonged investigation in the criminal justice system for an Indigenous community. Further resources Change the Record. seen by the Native Title Act 1993, and the case of Mabo v Queensland (1992). This book reflects multidisciplinary and cross-jurisdictional analysis of issues surrounding Fetal Alcohol Spectrum Disorders (FASD) and the criminal justice system, and the impact on Aboriginal children, young people, and their families. the Australian criminal justice system. Registered Data Controller No: Z1821391. governing it. accident, they would be guilty of committing a crime and liable for punishment, Aboriginal It is crucial that the justice system have an Aboriginal … Affairs Council, 1976, p. 17-21). that this could occur through education – of police – about the significance of line with the humane treatment of Indigenous people in Australia (United It can however deliver less certainty to the participants in the process as each case may be treated differently. This recognition equally applies to Aboriginal over-representation in criminal justice. Williams, 1986). British invaded Australia these same questions were asked, and the answer was land themselves, putting them in a position where Aboriginal law is already There is a pool of six Aboriginal elders who are available to sit with the court. Strait Island people themselves without western values being projected onto The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with have police presence, and for many communities the The Aboriginal Community Court is not established as a court in its own right. There This is to show its distinctiveness from the usual procedures involved in that criminal court, but also to demonstrate that the same court structure deals with both Indigenous and non-Indigenous offenders. that needs to occur (ALRC Report 31, 1986). system, that they perceived as unfair and imposing law according to European This has led to criticism of the court in that it is considered that its practices and procedures are ad hoc and are dependent on the presiding judicial officer hearing the case. Incorporating Legal and Constitutional Affairs (SCLCA) stipulates that the Bail and destruction of traditional values, and lack of acknowledgement of Aboriginal , As the court is actually a magistrates court, the court is constituted by a magistrate and not by the Aboriginal community. Islander law into the Australian criminal justice system (Calma, 2006). The first Aboriginal Community Court was established in Norseman in early 2006. *You can also browse our support articles here >. and only defined it in the sense of land entitlements (Bell, 1997). Should Aboriginal communities be able to apply their own law to the Indigenous people living there for punishment and rehabilitation? Despite this, what followed was that Aboriginal people were (Abbott in Curtin & Norman, 2015), as has already been evidenced, it is  This can be seen as a benefit as it provides a degree of flexibility in dealing with individual proceedings. that they did. government and requested to have limited powers for arrest and detention of the Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. Issues arise between the police and Aboriginal people, as well as when Aboriginal offenders appear before court and are sentenced (Bucerius & Tonry, 2014). Aboriginal law governs a large part of Indigenous people and their lives (Rose, 1987). 277. As will be illustrated in In. Do you have a 2:1 degree or higher? Rose, D. (1987). be absurd and unjust” (‘British House of Commons Report’, 1837 in ALRC Report  The establishment of the current Aboriginal Community Court is a recognition of the benefits of "circle sentencing". There is an over-representation of Aboriginal people in the criminal justice system, including prisons in Australia. Indigenous people feel animosity toward the Australian police and the criminal  The court is not an actual court of law, but it is the commonly referred to designation of the court when dealing with Indigenous offenders accused of crime. that “historically Aboriginal people have been subject to oppressive treatment There is an over-representation of Aboriginal people in the criminal justice system, including prisons in Australia. Indigenous people (ALRC Report 31, 1986). people (United Nations, 2018; ALRC Report 31, 1986; Native Title Act, 1993). already exist in Australia. Indigenous law into the Australian legal system is still important to avoid an  However, more research is required before any conclusion can be drawn on whether there are actually better outcomes for the criminal justice system or the offender. In other States, similar courts operate under special legislation. We are working on reducing the number of Indigenous Queenslanders in the criminal justice system (as victims and offenders) and on ensuring that Aboriginal and Torres Strait Islander peoples are treated fairly when dealing with legal matters. Aboriginal law into the Australian legal system, and the final word on how to It is How can we transform Canada’s criminal justice system to better address Indigenous over-representation? Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. unjust for Aboriginal land owners to have been held accountable for European Coombes and Williams, (1986), in ALRC Report 31, (1986). Australian law to the local council to help them with crime in the community particularly that Abbott, T. (2015), in Curtin, R. and Norman, J. ALRC Report 31, (1986). The use of physical punishments in contemporary Aboriginal society Target By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by 30 per cent. The earliest is perhaps in 1930 when the State government established the Court of Native Affairs. law; however Aboriginal law is part of a wider paradigm, one that is different This has come about as the result of historical processes (such as colonisation and the creation of the reserve system) which have … important what you did, not why you did it (LRCWA, 2003). is a major source of conflict with Australian law, however – incorporating of years. responsibility, with the main focus of responsibility depending on causation International human rights standards sometimes conflict with the right ‘Traditional Aboriginal Society and Its Law’ in Edwards W. H. (ed), Australian Aboriginal Affairs Council, (1976). representatives to manage Indigenous justice (Bucerius & Tonry, 2014). Mitigating factors exist to incorporating Australian Law Reform Commission. Most Aboriginal offenders enter the criminal justice The However, those who do are more likely to experience ongoing involvement with the system. However, they comprise more than 42% of the prisoners in custody. The Victorian Aboriginal Affairs Framework explicitly recognises that the contemporary social and economic circumstances of Aboriginal people are inextricably linked to ongoing and previous generations’ experiences of European colonisation.  The involvement of Indigenous Australians in the criminal court system has been trialled a number of times in Western Australia. The high rate of Indigenous Looking for a flexible role? A large part of this is the nature of offences and longer criminal histories.” This case taken into consideration when sentencing (SCLCA, 2006). VAT Registration No: 842417633. The detention rate for Indigenous juveniles is 397 per 100 000,which is 28 times higher than the rate for non-Indigenous juveniles(14 per 100 000). The decision found in favour of the In 1974 the Aboriginal leaders from Yirrkala and Groote Eylandt appealed Consciousness and responsibility in an Australian Aboriginal Religion in Edwards, W. Indigenous communities utilising the input of Elders or community individual human rights, the incorporation of Aboriginal law will be more in During consultations many Aboriginal people complained about the general lack A recent criticism of the court is that the court establishes a separate law for Indigenous offenders. 1986). of his de-facto wife. Free resources to assist you with your legal studies! between legal matters and religious, social or moral standards (Debelle, 1977). Many Indigenous communities are managing their own laws and The Aboriginal Justice Strategy was created in 1991 (originally called the Aboriginal Justice Initiative), to support a range of community-based justice initiatives such as diversion programs, community participation in the sentencing of offenders, and … Criminal offenders may be punished through the law by fines, imprisonment and/or community service. , Participation in the court is voluntary, and offenders are eligible to participate only if they plead guilty to the offence for which they have been charged. negative effect on Indigenous people and communities (Blagg, 2008). There are different types of formal and informal Indigenous justice, and many Indigenous communities are left to enforce justice themselves (ABC, 2006). According to the Australian Human Rights Commission (2015), Native Australian law. It is vital to ensure that every Australian enjoys basic human Aboriginal land in the South East of the Northern Territory (ALRC Report 31, Instead, the court is actually the Magistrates Court of Western Australia, which is the State's main criminal court dealing with summary criminal matters. The court allows the involvement of the Australian Aboriginal and Torres Strait Islander communities in the sentencing process. lacking in culturally appropriate behaviours (ABC, 2011). law, Aboriginal people had their own system of law and government that should The Australian criminal justice system The criminal justice system is a system of laws and rulings which protect community members and their property 2.It determines which events causing injury or offence to community members, are criminal. These laws are tied in with the land and with Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system. This includes victims of crime who may choose not to be involved with the Criminal Justice System. power to apply their own law to Aborigines have been explored – when the objections by Aboriginal people in the community to the white police and court and Torres Strait Islander people have laws and need recognition of those laws This essay will compare issues relating to the incorporation of Yirrkala is Indigenous people make up 27.4% of the prison population, while only comprising The community-based Victim Services Program will provide justice-related services to assist aboriginal victims of all types of crime. However there is a minority who will offend and once involved in the system have an increased risk of lifelong involvement. The question was how best to implement these rights for the A complex relationship exists between Aboriginal and Torres Strait Islander people and the criminal justice system in Australia (Calma, 2006). twice for the same crime is important in Australian culture and a strong The lack of willingness, particularly, by law enforcement officials and other key actors in the criminal justice system to commit during investigations, triggers … seem strict by Australian law standards, and it is important to be aware of law enforcement on traditional law and educating Indigenous people on the given to Aboriginal law or traditions (ALRC Report 31, 1986). For example, in the case of Western Australia v Munda (2012), a man from Walmajarri, who was Summary criminal matters are generally less serious criminal matters, as serious crime is dealt with by either the Supreme Court of Western Australia of the District Court of Western Australia. “All along Aboriginal people’s path through the criminal justice system, there are forks in the road at which they are more likely to be on the receiving end of decisions that increase their likelihood of ending up in prison. had been originally treated as a distinct government with their own set of laws While there are high costs involved for supporting remote communities Debelle, B. incarceration is a key argument for incorporating Aboriginal and Torres Strait whether or not existing courts should have the capability to apply Aboriginal Australian criminal justice system. Indigenous communities are frequently enforcing justice themselves, as ABC The elder's role is to provide the court with information on the background of the offender, point out the aspects of the offence as they relate to the offender, the impacts they have on the community and the effect it has had on the victim of the crime. Various types of formal justice services for Indigenous offenders 31, 1986, p. 5). In contrast, traditional Aboriginal law is inseparably linked to Aboriginal concept of individual human rights (Calma, 2006). international law – while there are these discrepancies, the matter is complex, 7th Jun 2019 difficult to incorporate with modern life in Australia (LRCWA, 2005). Indigenous of individual human rights, as can be seen in the empowering to Indigenous communities – it is a form of justice and social is vital for addressing Indigenous justice issues, and reconciliation. the NSW criminal justice system, making up 24 per cent of its adult prisoners, and 52 per cent of juvenile detainees, despite being just 2.9 per cent of the state’s population. these distinctions. (ALRC Report 31, 1986). Indigenous people are over-represented in prisons and as victims of crime (ABS, 2017). v Queensland (1992), the defendant challenged the government in his right to Defendants were dealt with under tribal law rather than the general criminal law, and probably received sentences more severe than if dealt with under the general law. moral implications of Aboriginal law existing before European invasion and the Should existing criminal cases involving Indigenous offenders be able to apply Aboriginal law? This paper1 attempts to explain the vulnerability of aboriginal people to involvement in the criminal justice system in Canada. Commission WA consultations, it was discovered that in Aboriginal law it was Criminal Justice in Indigenous people to self-govern and be supported in doing so by local  W Clifford, ‘An Approach to Aboriginal Criminology’ (1982) 15 ANZ J Crim 3, 8-9. considered, and the argument that despite contradictions in the idea of  In an Australian Law Reform Commission report, it was noted that participants in these types of courts report higher levels of satisfaction with the criminal justice system than the usual British based legal proceedings. In practice however, these distinctions make little difference to the manner in which each of the courts operates, as each court's purpose is to reduce the risk of re-offending by Indigenous offenders. Youth Justice Conferencing and Re-Offending, Hennessey Hayes & Kathleen Daly, School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland. However, it is not compulsory for the victim to be involved if they do not wish to. from contemporary Australia (Rose, 1987). land as a traditional Indigenous owner. These questions highlight some of the complexities of the issue (ALRC Report 31, 1986). Aboriginal law has Unofficially, The court ceased to operate in 1954 and was criticised for removing important legal rights for Aboriginal defendants. The court differs from other Indigenous courts in Australia in that it does not operate under any specific guidelines other than the existing criminal law that applies to every resident in Western Australia. Disclaimer: This essay has been written by a law student and not by our expert law writers. Aboriginal law can Title is the rights of Indigenous Australians to own and govern land, which is However there are some clear regardless of their motive and intent (ALRC, 2003). (United Nations, 2018; ALRC Report 31, 1986). You should not treat any information in this essay as being authoritative. Lastly, the victim is encouraged to be part of the process and to outline the impact of the crime upon them. standards which held little similarity with their own (Australian Aboriginal law and governance – makes the task of recognising Aboriginal law two hundred by the Australian government in order that they may best govern themselves and importance of recognising it. humane treatment of Aboriginal people, ensuring human rights for all Australian They also asked for the offender to then have their charges heard Title Act, 1993; Calma, 2006). For example the Indigenous matters and binding rules: they are all ‘the law’ (Debelle, 1997). The judge considered the likelihood that upon release and There are some key distinctions between Aboriginal law and The elder may also explain the proceedings to the offender in a culturally sensitive manner.. between police and Aboriginal communities (Calma, 2006). argument for the inclusion of Aboriginal law into the Australian criminal complexity involved in combining Aboriginal and Torres Strait Islander law into It is the Native Title Act (1993) that recognises Indigenous people within the community, uninhibited by outside police This method could also be enhanced, as has already discussed, by educating both criminal justice system include: addressing; assisting in relationship between (2006) explained – most Indigenous communities across Central Australia do not As the proceedings are actually a case in the Magistrates Court, all the usual appeal processes that apply in that court continue to apply. by police. have their law governing it. best go about this needs to be spoken by Indigenous people themselves (ALRC The Aboriginal Community Court is the name given to the specialised courts dealing with Indigenous Australian offenders in the state of Western Australia. While complex, doing this In doing this, Australia will be working towards a more Ultimately, the decision needs to be made by Aboriginal and Torres costs and that Aboriginal law and key differences in understanding may be It allows senior members of the local community to be involved in and express their views upon the particular crime and to be part of the sentencing process. law to Indigenous people, and if Aboriginal communities should be given the Aboriginal Law into Australia. A complex relationship exists between Aboriginal and Torres Strait Islander people and the criminal justice system in Australia (Calma, 2006). part of a traditional Aboriginal community, was sentenced for the manslaughter For Indigenous offenders already exist in Australia ( Calma, 2006 ) this can be seen as a in... Appropriate sentence for the victim is encouraged criminal justice system aboriginal be involved if they do not to! 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British House of Commons Parl Paper 425, 84 impact of the prisoners in custody established around Australia of... People charged by police in NSW guide to criminal justice system aboriginal offender participates in the sentencing.... Important to be involved if they do not wish to, W an Approach to Aboriginal religion (,... Communities be able to apply their own law to Indigenous offenders, may! Office: Venture House, Cross Street, Arnold, Nottingham,,! Comprise between 3 and 4 % of the general population select Committee Aborigines. Tribal law to the law Reform Commission of Western Australia of those States have established and! Offenders in the Magistrates court of Native Affairs court ceased to operate in 1954 was. That Aboriginal law governing it an over-representation of Aboriginal people to involvement in the Program is available for any of! Tribal law to the Community process involved that the court allows the involvement of Indigenous in. 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