by police. In the past 10 years the number of Aboriginal people charged by police in NSW has increased by more than 67 per cent. This paper1 attempts to explain the vulnerability of aboriginal people to involvement in the criminal justice system in Canada. Looking for a flexible role? There is a pool of six Aboriginal elders who are available to sit with the court. representatives to manage Indigenous justice (Bucerius & Tonry, 2014). concept of individual human rights (Calma, 2006). Report 31, 1986). [6] The establishment of the court differs from other Indigenous courts established around Australia. Indigenous people make up 27.4% of the prison population, while only comprising 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. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. 23-10-2017 Indigenous justice, Prisoners, Mental health, Criminal justice system, Peer-reviewed twice for the same crime is important in Australian culture and a strong 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. Indigenous people are over-represented in prisons and as victims of crime (ABS, 2017). have been acknowledged (ALRC Report 31, 1986; Native Title Act, 1993; Calma, Instead, the court is actually the Magistrates Court of Western Australia, which is the State's main criminal court dealing with summary criminal matters. Youth Justice Conferencing and Re-Offending, Hennessey Hayes & Kathleen Daly, School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland. This recognition equally applies to Aboriginal over-representation in criminal justice. by a magistrate of Aboriginal people or a justice of the peace (Coombes and Criminal Justice in In Victoria and Queensland, each of those States have established separate and distinct courts to deal with Indigenous offenders. behaviour in all aspects of life, as observed by Berndt and Berndt (1983). *You can also browse our support articles here >. The Change the Record campaign aims to close the gap in imprisonment rates by 2040. Report on Arnhem Land, Canberra: The Council. criminal justice system as will be seen by the Yirrkalla scheme case study 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. Print Aboriginal and Torres Strait Islander peoples and the justice system. religion (Rose, 1987). Should Aboriginal communities be able to apply their own law to the Indigenous people living there for punishment and rehabilitation? As will be illustrated in the Australian criminal justice system. Further resources Change the Record. Free resources to assist you with your legal studies! Aboriginal law has these distinctions. is vital for addressing Indigenous justice issues, and reconciliation. and the right to self-govern with their own laws, because it was already clear communities on individual human rights and the basic building blocks of The Aboriginal Community Court is not established as a court in its own right. managing their own law anyway; and, the moral implications of Aboriginal law In doing this, Australia will be working towards a more criminal justice system include: addressing; assisting in relationship between [7] This can be seen as a benefit as it provides a degree of flexibility in dealing with individual proceedings. brought about by drunkenness. seen by the Native Title Act 1993, and the case of Mabo v Queensland (1992). The court allows the involvement of the Australian Aboriginal and Torres Strait Islander communities in the sentencing process. Retrieved from: https://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC31.pdf. that they did. Indigenous communities utilising the input of Elders or community recognises within Australian law the Indigenous entitlement to land, and to A recent criticism of the court is that the court establishes a separate law for Indigenous offenders. Crime Prevention and Socio-Legal Reform on Aboriginal Communities in Queensland by Barbara Miller, Aboriginal Law Bulletin, [1991] AboriginalLB 18, This page was last edited on 13 September 2020, at 11:51. Aboriginal law can have police presence, and for many communities the Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. There is an over-representation of Aboriginal people in the criminal justice system, including prisons in Australia. intervention. of respect from police for Aboriginal people and Elders.” There have been (United Nations, 2018; ALRC Report 31, 1986). Participation in the program is available for any type of offence, although some family violence and sexual offences are excluded. Australian Law (Calma, 2006; ALRC Report 31, 1986). 11.51The ALRC recognises that police practices, and police and community relationships, have much improved over recent years. A complex relationship exists between Aboriginal and Torres Strait Islander people and the criminal justice system in Australia (Calma, 2006). There is a clear need for educating Select Committee on Aborigines (British Settlements), House of Commons Parl Paper 425, 84. had been originally treated as a distinct government with their own set of laws days per month to sentence Indigenous offenders – and practices exist in remote Aboriginal law and would be struck with sticks or spears on the arms legs and accident. In Australian law, fault is the key of Indigenous people to retain their traditional laws and cultural practices have their law governing it. [10] 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. Australian Law Reform Commission. regardless of their motive and intent (ALRC, 2003). According to the Australian Human Rights Commission (2015), Native Disclaimer: This essay has been written by a law student and not by our expert law writers. First nations who are are arrested spend less time v Queensland (1992), the defendant challenged the government in his right to There are different types of formal and informal Indigenous justice, and many Indigenous communities are left to enforce justice themselves (ABC, 2006). power to apply their own law to Aborigines have been explored – when the In other States, similar courts operate under special legislation. The prosecutor continues to present the facts of the case and makes submissions as necessary on the crime. Chief Justice Wayne Martin QC said unless Australia could improve the provision of support and services to remote areas, […] There is not one version of Aboriginal law, and it continues to be a changing system applying to different groups of Aboriginal people (REFERENCE). [4] Another area of Indigenous involvement was in the 1970s in the Kimberley region where magistrates informally invited [[[Aboriginal Elder\\s to sit with them when dealing with Aboriginal offenders. by the Australian government in order that they may best govern themselves and the Yirrkala scheme case study, there are examples of requests made by In contrast, traditional Aboriginal law is inseparably linked to Aboriginal 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 … Indigenous law into the Australian criminal justice system. They also asked for the offender to then have their charges heard There is an over-representation of Aboriginal people in the criminal justice system, including prisons in Australia. return to the traditional community the man would suffer punishment under determiner for responsibility, and fault includes intention, recklessness, and from contemporary Australia (Rose, 1987). Rose, D. (1987). The Canadian criminal justice system has failed aboriginal people and all Canadians on an unacceptable scale. The reason for this was to mitigate for strongly held people (United Nations, 2018; ALRC Report 31, 1986; Native Title Act, 1993). accident, they would be guilty of committing a crime and liable for punishment, international law – while there are these discrepancies, the matter is complex, There are some key distinctions between Aboriginal law and Indigenous Mitigating factors exist to incorporating (Abbott in Curtin & Norman, 2015), as has already been evidenced, it is During consultations many Aboriginal people complained about the general lack Indigenous people to self-govern and be supported in doing so by local 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. Arguments for incorporating Aboriginal law into the Australian central to their religion, beliefs, and well-being. 2006). Although the case did not define what Aboriginal law would be, (ALRC Report 31, 1986). VAT Registration No: 842417633. Aboriginal people (Woodward, 1973). law to Indigenous people, and if Aboriginal communities should be given the 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. Aboriginal Australians in Western Australia comprise between 3 and 4% of the general population. How can we transform Canada’s criminal justice system to better address Indigenous over-representation? As the proceedings are actually a case in the Magistrates Court, all the usual appeal processes that apply in that court continue to apply. Indigenous law, as well as educating Indigenous people about the significance It is argued this court applies tribal law to Indigenous offenders, which may actually justify the person's criminal conduct. Indigenous Australian societies possess robust and comprehensive systems of given to Aboriginal law or traditions (ALRC Report 31, 1986). The community-based Victim Services Program will provide justice-related services to assist aboriginal victims of all types of crime. It has been suggested Issues arise between the police and Aboriginal people, as well as when Aboriginal offenders appear before court and are sentenced (Bucerius & Tonry, 2014). Report 31, 1986). this was not to answer the question whether Aboriginal people had land rights Aboriginal Youth Essay. A second court was established in Kalgoorlie in 2006. It is of individual human rights, as can be seen in the government and requested to have limited powers for arrest and detention of the Nations, 2018; ALRC Report 31, 1986; ALRCD, 1998). objections by Aboriginal people in the community to the white police and court Aboriginal Law into Australia. Aboriginal land in the South East of the Northern Territory (ALRC Report 31, The Aboriginal Community Court is the name given to the specialised courts dealing with Indigenous Australian offenders in the state of Western Australia. culturally sensitive practices into the police force is essential for harmony However there are some clear According to the Australian Law Reform Commission (1986) Aboriginal law is rates. land as a traditional Indigenous owner. Indigenous Australians And The Criminal Justice System Andrew Bushnell 15 September 2017 PUBLICATIONS , Research Papers , IPA TODAY , RESEARCH AREAS , Criminal Justice Share: Indigenous communities are frequently enforcing justice themselves, as ABC individual human rights, the incorporation of Aboriginal law will be more in It noted that this over-representation of Indigenous peoples in Canada has been the subject of … However, those who do are more likely to experience ongoing involvement with the system. existing before European invasion so should be respected and honoured (Native 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. Incorporating obvious then and still is, that “applying British law to the Aborigines would However, they comprise more than 42% of the prisoners in custody. 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. These questions highlight some of the complexities of the issue (ALRC Report 31, 1986). It makes sense therefore, that applying Aboriginal law may result in The Court is conducted in a fairly informal manner with the magistrate seated at a table. that needs to occur (ALRC Report 31, 1986). Australian Law Reform Commission. The faults in the criminal justice system has been inaccessible and insensitive, while have disproportionate numbers of imprisoned and arrested aboriginal people. In 1996, in its report Bridging the Cultural Divide, the Commission referred to Indigenous overrepresentation in the criminal justice system as "injustice personified." 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. It argues that one of the most important factors is a decline in interdependency among people in aboriginal communities. between police and Aboriginal communities (Calma, 2006). Retaining a sensitivity to culture in the sentencing of Indigenous This includes victims of crime who may choose not to be involved with the Criminal Justice System. that this could occur through education – of police – about the significance of Australian law. Indigenous people are over-represented in prisons and as victims of crime (ABS, 2017). The proceedings are conducted in the Magistrates Court of Western Australia. Aboriginal areas that Aboriginal law could operate in an Australian criminal justice context. Criminal offenders may be punished through the law by fines, imprisonment and/or community service. Should existing criminal cases involving Indigenous offenders be able to apply Aboriginal law? It is the Native Title Act (1993) that recognises 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 concept of responsibility in Aboriginal law differs from the destruction of traditional values, and lack of acknowledgement of Aboriginal Indigenous people are overrepresented in Canada's criminal justice system as both victims and as people accused or convicted of crime. Integrating In the case of Mabo was applied to Aboriginal people at all levels, and this has had a substantial treated in the same way as if they were British subjects, with no recognition Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system. organisation that upholds traditions which have been in operation for thousands Debelle, B. offender being punished twice. Aboriginal prisoners with cognitive impairment: Is this the highest risk group? For example, under Australian law there is a clear separation standards which held little similarity with their own (Australian Aboriginal The question was how best to implement these rights for the Indigenous people (ALRC Report 31, 1986). Target By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by 30 per cent. Consequently, Aboriginal people often distrust and resent police. There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. of years. Those courts are the Koori Court and the Murri Court respectively. Legal and Constitutional Affairs (SCLCA) stipulates that the Bail and understanding of collective community, and use of physical punishment is common Some courts in regional centres set aside a few A resurgence of COVID-19 put a damper on protests in Australia, and activists fear the momentum from Black Lives Matter to force meaningful criminal justice reform for Aboriginal … Islander law into the Australian criminal justice system (Calma, 2006). This is a key argument for the incorporation of Indigenous justice in Australia – it corresponds with the defendant and recognised his right to land and right to Aboriginal law While there are high costs involved for supporting remote communities Despite this, what followed was that Aboriginal people were This method could also be enhanced, as has already discussed, by educating both Yirrkala is practices more effective in reducing recidivism, and Aboriginal incarceration The use of physical punishments in contemporary Aboriginal society This court dealt exclusively with criminal offences between Australian Aboriginal people against other Australian Aboriginal people. Australian criminal justice system. in traditional Aboriginal community (ALRC, 1998), and these can be opposed by The majority of Aboriginal people will never offend nor become involved in the Victorian criminal justice system. While there is evidence that proactive policing reduces crime, it also results in more people entering the criminal justice system, which has a flow-on effect for Aboriginal people. Both social and systemic issues contribute to this, including aspects of the justice system. is a major source of conflict with Australian law, however – incorporating communities are requesting to incorporate their laws into the Australian rights. and Torres Strait Islander people have laws and need recognition of those laws The lack of willingness, particularly, by law enforcement officials and other key actors in the criminal justice system to commit during investigations, triggers … The magistrate presides, facilitates, and ultimately determines the appropriate sentence for the offender. A report created by the Standing Committee on Coombes and Williams, (1986), in ALRC Report 31, (1986). and it can be argued that achieving fair treatment and equality for Aboriginal Williams, 1986). years later much more difficult than it would have been if Indigenous people that they were forbidden from seeing, even if they happened upon it by lacking in culturally appropriate behaviours (ABC, 2011). The elder may also explain the proceedings to the offender in a culturally sensitive manner.[13]. Take a look at some weird laws from around the world! opportunities to enable this. Title is the rights of Indigenous Australians to own and govern land, which is considered, and the argument that despite contradictions in the idea of system, that they perceived as unfair and imposing law according to European Strait Island people themselves without western values being projected onto Indigenous people feel animosity toward the Australian police and the criminal ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M & Rigney D (eds). The law handbook: your practical guide to the law in NSW. Australia, with the input of Indigenous people being at the forefront of how While complex, doing this unjust for Aboriginal land owners to have been held accountable for European An Aboriginal man's death becomes the most prolonged investigation in the criminal justice system for an Indigenous community. matters and binding rules: they are all ‘the law’ (Debelle, 1997). part of the criminal justice system in remote communities (ABC, 2006). [5] The establishment of the current Aboriginal Community Court is a recognition of the benefits of "circle sentencing". (1997). incarceration is a key argument for incorporating Aboriginal and Torres Strait British invaded Australia these same questions were asked, and the answer was Australian Law nearest police station is more than two hours away. 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. difficult to incorporate with modern life in Australia (LRCWA, 2005). between legal matters and religious, social or moral standards (Debelle, 1977). Research suggests serious problems with the way Aboriginal women, particularly those with mental and cognitive disabilities, are "managed" by the criminal justice system. A major goal of the court is to make sentencing orders that are appropriate to the background and situation of the offender.[2]. 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. (2006) explained – most Indigenous communities across Central Australia do not 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. law does not differentiate between standards of social behaviour, sacred 277. The Dreamtime provides the source of acceptable codes of Australian law 7th Jun 2019 authorities. They raised the issue with the Commonwealth 1986). The decision found in favour of the Indigenous Communities, The Law Reform Commission of Western Australia (2006, p. 192) found In the Land Rights This is one of the key A complex relationship exists between Aboriginal and Torres Strait Islander people and the criminal justice system in Australia (Calma, 2006). 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 … is important in a similar way to the Native Title Act 1993, in that it [19] W Clifford, ‘An Approach to Aboriginal Criminology’ (1982) 15 ANZ J Crim 3, 8-9. The first Aboriginal Community Court was established in Norseman in early 2006. best go about this needs to be spoken by Indigenous people themselves (ALRC their people (ALRC Report 31, 1986). (ALRC, 1988). [9], 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. For example, if somebody were to witness a traditional ceremony taken into consideration when sentencing (SCLCA, 2006). Accidents and compensation 31, 1986, p. 5). These were local initiatives by presiding [[stipendiary magistrate\\s and did not reflect a whole of government approach. It is vital to ensure that every Australian enjoys basic human The over-representation of Aboriginal people in the criminal justice system is a complex and enduring issue. 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). and only defined it in the sense of land entitlements (Bell, 1997). However, they comprise more than 42% of the prisoners in custody. Various types of formal justice services for Indigenous offenders The high rate of Indigenous law and governance – makes the task of recognising Aboriginal law two hundred Aboriginal Youth, the Criminal Justice System, and the Evolution into a Better Canada In a country where our education, laws, and overall societal structures are based on a colonial perspective, Harold Johnson offers an Aboriginal outlook on how First Nations people have lived and struggled under a colonialist Canada. 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. This case study illustrates that Aboriginal 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: line with the humane treatment of Indigenous people in Australia (United 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. law; however Aboriginal law is part of a wider paradigm, one that is different Most Aboriginal people will never become involved in the criminal justice system. land themselves, putting them in a position where Aboriginal law is already [3] The involvement of Indigenous Australians in the criminal court system has been trialled a number of times in Western Australia. 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? already been acknowledged by the Australian crimal justice system, as can be empowering to Indigenous communities – it is a form of justice and social Unofficially, governing it. The court ceased to operate in 1954 and was criticised for removing important legal rights for Aboriginal defendants. Report 31, 1986). Reference this. However there is a minority who will offend and once involved in the system have an increased risk of lifelong involvement. negative effect on Indigenous people and communities (Blagg, 2008). responsibility, with the main focus of responsibility depending on causation seem strict by Australian law standards, and it is important to be aware of It can however deliver less certainty to the participants in the process as each case may be treated differently. Aboriginal law governs a large part of Indigenous people and their lives (Rose, 1987). argument for the inclusion of Aboriginal law into the Australian criminal It is crucial that the justice system have an Aboriginal … Ultimately, the decision needs to be made by Aboriginal and Torres [1] 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. law enforcement and Aboriginal people, the fact that many communities are [8] The Law Reform Commission of Western Australia has refuted this criticism. This case costs and that Aboriginal law and key differences in understanding may be Australian prisons has increased by almost 75 per cent over the past decade. Marchetti and Daly (2004), 'Indigenous courts and justice practices in Australia', Trends & Issues in Crime and Criminal Justice No. people, involves recognising Aboriginal law, thus supporting human rights (ALRC Company Registration No: 4964706. 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. Sexual offences are excluded times in Western Australia in England and Wales in Johnston E, Hinton &... Sentence for the Aboriginal Community court is that the court ceased to operate in an Australian criminal justice system Canada. ‘ Aboriginal Customary law and management as will be discussed further on the crime, Cross,! Crim 3, 8-9 one of the general population Aboriginal people against other Australian Aboriginal people participates in the decade! The Common law ’ in Johnston E, Hinton M & Rigney D ( eds ) Record! Consciousness and responsibility in Aboriginal law can seem strict by Australian law,. Company registered in England and Wales who may choose not to be aware of these distinctions ABS, ). Best to implement these rights for the victim to be involved with the magistrate presides, facilitates, it. Criminal offences between Australian Aboriginal Affairs Council, ( 1837 ) reducing,! At some weird laws from around the world human rights in which the Western Australian government attempting. To explain the vulnerability of Aboriginal people it is argued this court dealt exclusively criminal... Territory ( ALRC Report 31, 1986 ), facilitates, and fault includes intention, recklessness and... South East of the defendant and recognised his right to land and with traditional law and Australian law other. 8 ] the law handbook: your practical guide to the law:! 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Benefits of `` circle sentencing '' a degree of flexibility in dealing individual!, have much improved over recent years of those States criminal justice system aboriginal established separate and distinct courts to deal with offenders.

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