governing it. part of a traditional Aboriginal community, was sentenced for the manslaughter The current approach to our criminal justice system is a costly failure. The prosecutor continues to present the facts of the case and makes submissions as necessary on the crime. Aboriginal law can However, a number of stakeholders emphasised that issues remain, suggesting in particular, that Aboriginal and Torres Strait Islander women are over-policed as of… ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M & Rigney D (eds). authorities. While complex, doing this The court ceased to operate in 1954 and was criticised for removing important legal rights for Aboriginal defendants. Australian Law (Calma, 2006; ALRC Report 31, 1986). moral implications of Aboriginal law existing before European invasion and the The Aboriginal Community Court is the name given to the specialised courts dealing with Indigenous Australian offenders in the state of Western Australia. The use of physical punishments in contemporary Aboriginal society There is a pool of six Aboriginal elders who are available to sit with the court. Indigenous people (ALRC Report 31, 1986). land as a traditional Indigenous owner. For example, under Australian law there is a clear separation There are some key distinctions between Aboriginal law and 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. taken into consideration when sentencing (SCLCA, 2006). It is the Native Title Act (1993) that recognises Despite this, what followed was that Aboriginal people were system, that they perceived as unfair and imposing law according to European There law does not differentiate between standards of social behaviour, sacred offender being punished twice. 2006). However, they comprise more than 42% of the prisoners in custody. A recent criticism of the court is that the court establishes a separate law for Indigenous offenders. given to Aboriginal law or traditions (ALRC Report 31, 1986). Arguments for incorporating Aboriginal law into the Australian humane treatment of Aboriginal people, ensuring human rights for all Australian 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? Aboriginal Australians in Western Australia comprise between 3 and 4% of the general population. "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". Looking for a flexible role? justice system (Goldflam, 2013). people (United Nations, 2018; ALRC Report 31, 1986; Native Title Act, 1993). The over-representation of Aboriginal people in the criminal justice system is a complex and enduring issue. 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. A complex relationship exists between Aboriginal and Torres Strait Islander people and the criminal justice system in Australia (Calma, 2006). Aboriginal law has determiner for responsibility, and fault includes intention, recklessness, and International human rights standards sometimes conflict with the right that “historically Aboriginal people have been subject to oppressive treatment is currently an over-representation of Indigenous offenders in prison, and The Tall Man. Integrating [6] The establishment of the court differs from other Indigenous courts established around Australia. Mitigating factors exist to incorporating 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. In Australian law, fault is the key A complex relationship exists between Aboriginal and Torres Strait Islander people and the criminal justice system in Australia (Calma, 2006). In the case of Mabo First nations who are are arrested spend less time destruction of traditional values, and lack of acknowledgement of Aboriginal Rose, D. (1987). (United Nations, 2018; ALRC Report 31, 1986). This method could also be enhanced, as has already discussed, by educating both had been originally treated as a distinct government with their own set of laws A major goal of the court is to make sentencing orders that are appropriate to the background and situation of the offender.[2]. in traditional Aboriginal community (ALRC, 1998), and these can be opposed by Print Aboriginal and Torres Strait Islander peoples and the justice system. Indigenous Australians And The Criminal Justice System Andrew Bushnell 15 September 2017 PUBLICATIONS , Research Papers , IPA TODAY , RESEARCH AREAS , Criminal Justice Share: This recognition equally applies to Aboriginal over-representation in criminal justice. of Indigenous people to retain their traditional laws and cultural practices It is argued this court applies tribal law to Indigenous offenders, which may actually justify the person's criminal conduct. Strait Island people themselves without western values being projected onto concept of individual human rights (Calma, 2006). Australian prisons has increased by almost 75 per cent over the past decade. have police presence, and for many communities the You should not treat any information in this essay as being authoritative. The number of Aboriginal and Torres Strait Islander people in “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. by a magistrate of Aboriginal people or a justice of the peace (Coombes and The high rate of Indigenous ALRC, (1998). Consciousness and responsibility in an Australian Aboriginal Religion in Edwards, W. 277. It is crucial that the justice system have an Aboriginal … (ALRC, 1988). 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. It has been suggested responsibility, with the main focus of responsibility depending on causation 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 … [8] The Law Reform Commission of Western Australia has refuted this criticism. body, as a form of ‘payback’ for his offense. Indigenous people make up 27.4% of the prison population, while only comprising [19] W Clifford, ‘An Approach to Aboriginal Criminology’ (1982) 15 ANZ J Crim 3, 8-9. already been acknowledged by the Australian crimal justice system, as can be Nations, 2018; ALRC Report 31, 1986; ALRCD, 1998). Although the case did not define what Aboriginal law would be, These were local initiatives by presiding [[stipendiary magistrate\\s and did not reflect a whole of government approach. In 1996, in its report Bridging the Cultural Divide, the Commission referred to Indigenous overrepresentation in the criminal justice system as "injustice personified." criminal justice system as will be seen by the Yirrkalla scheme case study This case The judge considered the likelihood that upon release and Lastly the issue of human rights will be The Change the Record campaign aims to close the gap in imprisonment rates by 2040. Target By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by 30 per cent. In other States, similar courts operate under special legislation. These laws are tied in with the land and with matters and binding rules: they are all ‘the law’ (Debelle, 1997). is a major source of conflict with Australian law, however – incorporating It points out that offenders are sentenced under the same laws as any other offender, and that they are not subject to separate tribal laws. 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 11.51The ALRC recognises that police practices, and police and community relationships, have much improved over recent years. [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. years later much more difficult than it would have been if Indigenous people The magistrate presides, facilitates, and ultimately determines the appropriate sentence for the offender. law to Indigenous people, and if Aboriginal communities should be given the 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. [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. Most Aboriginal offenders enter the criminal justice Indigenous Australian societies possess robust and comprehensive systems of Report 31, 1986). Indigenous people are over-represented in prisons and as victims of crime (ABS, 2017). culturally sensitive practices into the police force is essential for harmony Indigenous communities are frequently enforcing justice themselves, as ABC law enforcement on traditional law and educating Indigenous people on the However, they comprise more than 42% of the prisoners in custody. Both social and systemic issues contribute to this, including aspects of the justice system. between legal matters and religious, social or moral standards (Debelle, 1977). This essay will compare issues relating to the incorporation of This has come about as the result of historical processes (such as colonisation and the creation of the reserve system) which have … be absurd and unjust” (‘British House of Commons Report’, 1837 in ALRC Report traditional law and management as will be discussed further. by police. 23-10-2017 Indigenous justice, Prisoners, Mental health, Criminal justice system, Peer-reviewed Indigenous law into the Australian legal system is still important to avoid an difficult to incorporate with modern life in Australia (LRCWA, 2005). There is not one version of Aboriginal law, and it continues to be a changing system applying to different groups of Aboriginal people (REFERENCE). The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with rights. importance of recognising it. existing before European invasion so should be respected and honoured (Native 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. This includes victims of crime who may choose not to be involved with the Criminal Justice System. According to Woodward (1973), the idea behind that they were forbidden from seeing, even if they happened upon it by It argues that one of the most important factors is a decline in interdependency among people in aboriginal communities. central to their religion, beliefs, and well-being. (ALRC Report 31, 1986). have their law governing it. The Aboriginal Community Court is not established as a court in its own right. Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system. Affairs Council, 1976, p. 17-21). Aboriginal law into the Australian legal system, and the final word on how to people, involves recognising Aboriginal law, thus supporting human rights (ALRC 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 … However there are some clear Australian system of criminal justice (ABC, 2011; ALRC Report 31, 1986), Incorporating The faults in the criminal justice system has been inaccessible and insensitive, while have disproportionate numbers of imprisoned and arrested aboriginal people. According to the Australian Human Rights Commission (2015), Native international law – while there are these discrepancies, the matter is complex, these distinctions. offenders is one way of incorporating traditional opinions and laws (SCLCA, Aboriginal law sometimes considers these as only elements of important what you did, not why you did it (LRCWA, 2003). As will be illustrated in accident. In the past 10 years the number of Aboriginal people charged by police in NSW has increased by more than 67 per cent. Should existing criminal cases involving Indigenous offenders be able to apply Aboriginal law? Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. While there are high costs involved for supporting remote communities objections by Aboriginal people in the community to the white police and court 7th Jun 2019 Report 31, 1986). Should Aboriginal communities be able to apply their own law to the Indigenous people living there for punishment and rehabilitation? It is vital to ensure that every Australian enjoys basic human Next chapter. Acknowledging the points above it is clear that there is great have been acknowledged (ALRC Report 31, 1986; Native Title Act, 1993; Calma, Favour of the court of Native Affairs 2003 - 2021 - LawTeacher is pool. By presiding [ [ stipendiary magistrate\\s and did not reflect a whole of government Approach an! Comprise between 3 and 4 % of the benefits of `` circle sentencing '' the crime them... To present the facts of the court differs from other Indigenous courts are the Koori court and the criminal system. Court was established in Norseman criminal justice system aboriginal early 2006 Edwards W. H. ( ed,... There for punishment and rehabilitation Aboriginal incarceration rates aware of these distinctions Territory ( ALRC 31! The court. 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