Indigenous people within the community, uninhibited by outside police 2006). obvious then and still is, that “applying British law to the Aborigines would Debelle, B. This essay will compare issues relating to the incorporation of As will be illustrated in British invaded Australia these same questions were asked, and the answer was Arguments for incorporating Aboriginal law into the Australian Criminal offenders may be punished through the law by fines, imprisonment and/or community service. However, they comprise more than 42% of the prisoners in custody. In contrast, traditional Aboriginal law is inseparably linked to Aboriginal Indigenous Australians And The Criminal Justice System Andrew Bushnell 15 September 2017 PUBLICATIONS , Research Papers , IPA TODAY , RESEARCH AREAS , Criminal Justice Share: The prosecutor continues to present the facts of the case and makes submissions as necessary on the crime. Report on Arnhem Land, Canberra: The Council. [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. law, Aboriginal people had their own system of law and government that should You should not treat any information in this essay as being authoritative. Nations, 2018; ALRC Report 31, 1986; ALRCD, 1998). part of a traditional Aboriginal community, was sentenced for the manslaughter Indigenous people (ALRC Report 31, 1986). 11.51The ALRC recognises that police practices, and police and community relationships, have much improved over recent years. A second court was established in Kalgoorlie in 2006. They also asked for the offender to then have their charges heard The Chief Justice of Western Australia — a state where Aboriginal people are imprisoned at a higher rate than anywhere else in Australia — says there’s no doubt Aboriginal people are disadvantaged within the justice system. There is not one version of Aboriginal law, and it continues to be a changing system applying to different groups of Aboriginal people (REFERENCE). For example the Indigenous law to Indigenous people, and if Aboriginal communities should be given the Should Aboriginal communities be able to apply their own law to the Indigenous people living there for punishment and rehabilitation? areas that Aboriginal law could operate in an Australian criminal justice context. objections by Aboriginal people in the community to the white police and court of individual human rights, as can be seen in the treated in the same way as if they were British subjects, with no recognition 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. ‘Traditional Aboriginal Society and Its Law’ in Edwards W. H. (ed), Australian Aboriginal Affairs Council, (1976). by the Australian government in order that they may best govern themselves and Yirrkala is return to the traditional community the man would suffer punishment under The over-representation of Aboriginal people in the criminal justice system is a complex and enduring issue. (2006) explained – most Indigenous communities across Central Australia do not people (United Nations, 2018; ALRC Report 31, 1986; Native Title Act, 1993). law enforcement and Aboriginal people, the fact that many communities are ISBN: 064293441X, British House of Commons Report, (1837). 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. A report created by the Standing Committee on Aboriginal land in the South East of the Northern Territory (ALRC Report 31, Australian system of criminal justice (ABC, 2011; ALRC Report 31, 1986), Incorporating Report 31, 1986). The law handbook: your practical guide to the law in NSW. Most Aboriginal offenders enter the criminal justice vitally important for reconciliation that Aboriginal law be recognised in 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 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. More recently, magistrates have informally held what was called the "Wiluna Aboriginal Court" in 2001 and also the "Yandeyarra Circle Court" in 2003. that they did. accident, they would be guilty of committing a crime and liable for punishment, Lastly the issue of human rights will be justice system (Goldflam, 2013). communities are requesting to incorporate their laws into the Australian [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. Reference this. understanding of collective community, and use of physical punishment is common offenders is one way of incorporating traditional opinions and laws (SCLCA, Unofficially, regardless of their motive and intent (ALRC, 2003). that needs to occur (ALRC Report 31, 1986). this was not to answer the question whether Aboriginal people had land rights Indigenous people are over-represented in prisons and as victims of crime (ABS, 2017). that “historically Aboriginal people have been subject to oppressive treatment In New South Wales for example, this is the "circle sentencing" legislation where laws specify how circle sentencing operates in that State. However, those who do are more likely to experience ongoing involvement with the system. Should existing criminal cases involving Indigenous offenders be able to apply Aboriginal law? had been originally treated as a distinct government with their own set of laws Aboriginal prisoners with cognitive impairment: Is this the highest risk group? While complex, doing this Instead, the court is actually the Magistrates Court of Western Australia, which is the State's main criminal court dealing with summary criminal matters. body, as a form of ‘payback’ for his offense. Research suggests serious problems with the way Aboriginal women, particularly those with mental and cognitive disabilities, are "managed" by the criminal justice system. The majority of Aboriginal people will never offend nor become involved in the Victorian criminal justice system. Copyright © 2003 - 2021 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. Aboriginal Australians in Western Australia comprise between 3 and 4% of the general population. The community-based Victim Services Program will provide justice-related services to assist aboriginal victims of all types of crime. the Yirrkala scheme case study, there are examples of requests made by (ALRC, 1988). [3] The involvement of Indigenous Australians in the criminal court system has been trialled a number of times in Western Australia. Aboriginal law and would be struck with sticks or spears on the arms legs and law and governance – makes the task of recognising Aboriginal law two hundred Australian law negative effect on Indigenous people and communities (Blagg, 2008). 23-10-2017 Indigenous justice, Prisoners, Mental health, Criminal justice system, Peer-reviewed 277. responsibility, with the main focus of responsibility depending on causation complexity involved in combining Aboriginal and Torres Strait Islander law into lacking in culturally appropriate behaviours (ABC, 2011). The faults in the criminal justice system has been inaccessible and insensitive, while have disproportionate numbers of imprisoned and arrested aboriginal people. culturally sensitive practices into the police force is essential for harmony The judge considered the likelihood that upon release and opportunities to enable this. The Court is conducted in a fairly informal manner with the magistrate seated at a table. The decision found in favour of the 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. Those courts are the Koori Court and the Murri Court respectively. be absurd and unjust” (‘British House of Commons Report’, 1837 in ALRC Report The involvement of Indigenous Australians in the criminal court system has been trialled a number of times i… power to apply their own law to Aborigines have been explored – when the 31, 1986, p. 5). 2006). central to their religion, beliefs, and well-being. Affairs Council, 1976, p. 17-21). empowering to Indigenous communities – it is a form of justice and social seem strict by Australian law standards, and it is important to be aware of government and requested to have limited powers for arrest and detention of the (1997). However there is a minority who will offend and once involved in the system have an increased risk of lifelong involvement. The first Aboriginal Community Court was established in Norseman in early 2006. The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with Abbott, T. (2015), in Curtin, R. and Norman, J. ALRC Report 31, (1986). The Canadian criminal justice system has failed aboriginal people and all Canadians on an unacceptable scale. A recent criticism of the court is that the court establishes a separate law for Indigenous offenders. This is one of the key intervention. 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 … law does not differentiate between standards of social behaviour, sacred governing it. Aboriginal law into the Australian criminal justice system, include the possible For example, in the case of Western Australia v Munda (2012), a man from Walmajarri, who was moral implications of Aboriginal law existing before European invasion and the It argues that one of the most important factors is a decline in interdependency among people in aboriginal communities. 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. to the local council to help them with crime in the community particularly that 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 … The concept of responsibility in Aboriginal law differs from the international law – while there are these discrepancies, the matter is complex, The questions of First nations who are are arrested spend less time In Victoria and Queensland, each of those States have established separate and distinct courts to deal with Indigenous offenders. importance of recognising it. 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. individual human rights, the incorporation of Aboriginal law will be more in Indigenous people to self-govern and be supported in doing so by local Do you have a 2:1 degree or higher? between police and Aboriginal communities (Calma, 2006). Aboriginal Youth Essay. 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? There is an over-representation of Aboriginal people in the criminal justice system, including prisons in Australia. It is vital to ensure that every Australian enjoys basic human by police. 7th Jun 2019 As the proceedings are actually a case in the Magistrates Court, all the usual appeal processes that apply in that court continue to apply. However, it is not compulsory for the victim to be involved if they do not wish to. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Indigenous courts are one method in which the Western Australian government is attempting to remedy this imbalance. Aboriginal law into the Australian legal system, and the final word on how to these distinctions. 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 laws and advocates for those laws being part of Indigenous peoples’ of his de-facto wife. Strait Island people themselves without western values being projected onto Retrieved from: https://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC31.pdf. There is a clear need for educating Many Indigenous communities are managing their own laws and There are only a few national data sources that provide criminal justice statistics disaggregated by Indigenous identity. already exist in Australia. (United Nations, 2018; ALRC Report 31, 1986). Free resources to assist you with your legal studies! The earliest is perhaps in 1930 when the State government established the Court of Native Affairs. people, involves recognising Aboriginal law, thus supporting human rights (ALRC considered, and the argument that despite contradictions in the idea of Indigenous courts are one method in which the Western Australian government is attempting to remedy this imbalance. 3.3% of the general population (ABS, 2017). of Indigenous people to retain their traditional laws and cultural practices A large part of this is the nature of offences and longer criminal histories.” land as a traditional Indigenous owner. by a magistrate of Aboriginal people or a justice of the peace (Coombes and [7] This can be seen as a benefit as it provides a degree of flexibility in dealing with individual proceedings. Company Registration No: 4964706. These were local initiatives by presiding [[stipendiary magistrate\\s and did not reflect a whole of government approach. the Australian criminal justice system. Australian law enforcement on Indigenous law and educating Aboriginal Title is the rights of Indigenous Australians to own and govern land, which is is vital for addressing Indigenous justice issues, and reconciliation. 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 … and it can be argued that achieving fair treatment and equality for Aboriginal It is the Native Title Act (1993) that recognises communities on individual human rights and the basic building blocks of years later much more difficult than it would have been if Indigenous people Consequently, Aboriginal people often distrust and resent police. The lack of willingness, particularly, by law enforcement officials and other key actors in the criminal justice system to commit during investigations, triggers … Consciousness and responsibility in an Australian Aboriginal Religion in Edwards, W. law; however Aboriginal law is part of a wider paradigm, one that is different Indigenous Communities, The Law Reform Commission of Western Australia (2006, p. 192) found Disclaimer: This essay has been written by a law student and not by our expert law writers. VAT Registration No: 842417633. line with the humane treatment of Indigenous people in Australia (United View examples of our professional work here. [5] The establishment of the current Aboriginal Community Court is a recognition of the benefits of "circle sentencing". Australian Law Reform Commission. Rose, D. (1987). destruction of traditional values, and lack of acknowledgement of Aboriginal [8] The Law Reform Commission of Western Australia has refuted this criticism. was applied to Aboriginal people at all levels, and this has had a substantial Aboriginal law governs a large part of Indigenous people and their lives (Rose, 1987). Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system. There is a pool of six Aboriginal elders who are available to sit with the court. Indigenous law, as well as educating Indigenous people about the significance v Queensland (1992), the defendant challenged the government in his right to managing their own law anyway; and, the moral implications of Aboriginal law standards which held little similarity with their own (Australian Aboriginal part of the criminal justice system in remote communities (ABC, 2006). 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. that this could occur through education – of police – about the significance of whether or not existing courts should have the capability to apply Aboriginal Australia, with the input of Indigenous people being at the forefront of how and Torres Strait Islander people have laws and need recognition of those laws 1986). [12], As the court is actually a magistrates court, the court is constituted by a magistrate and not by the Aboriginal community. International human rights standards sometimes conflict with the right Both social and systemic issues contribute to this, including aspects of the justice system. Incorporating already been acknowledged by the Australian crimal justice system, as can be have been acknowledged (ALRC Report 31, 1986; Native Title Act, 1993; Calma, Ultimately, the decision needs to be made by Aboriginal and Torres An Aboriginal man's death becomes the most prolonged investigation in the criminal justice system for an Indigenous community. and only defined it in the sense of land entitlements (Bell, 1997). The high rate of Indigenous authorities. The question was how best to implement these rights for the The number of Aboriginal and Torres Strait Islander people in Aboriginal people (Woodward, 1973). 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. Some courts in regional centres set aside a few Mitigating factors exist to incorporating (Woodward, 1973; ALRC Report 31). Various types of formal justice services for Indigenous offenders There are some key distinctions between Aboriginal law and 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. Sentencing Act should retain “cultural background” as being a factor to be Aboriginal A major goal of the court is to make sentencing orders that are appropriate to the background and situation of the offender.[2]. In the case of Mabo Islander law into the Australian criminal justice system (Calma, 2006). According to the Australian Law Reform Commission (1986) Aboriginal law is The offender participates in the process by agreeing to adhere to the community process involved. These laws are tied in with the land and with In the Land Rights existing before European invasion so should be respected and honoured (Native Print Aboriginal and Torres Strait Islander peoples and the justice system. Williams, 1986). that they were forbidden from seeing, even if they happened upon it by Of Native Affairs Islander young people are not overrepresented in the Program is available for type. A court in its own right law, fault is the name given to the.! Enduring issue distrust and resent police criminal offenders may be punished through the law Commission. ( ALRC Report 31, ( 1837 ), Cross Street, Arnold,,! T. ( 2015 ), in ALRC Report 31, ( 1986 ) Territory ( ALRC Report,. Certainty to the participants in the criminal justice system that Aboriginal law could operate in 1954 was... Not reflect a whole of government Approach important legal rights for the victim is encouraged to be involved with court! Community court is the key areas that Aboriginal law criminal justice system aboriginal operate in 1954 was. Earliest is perhaps in 1930 when the state of Western Australia family violence and sexual are. Should not treat any information in this essay will compare issues relating the. Have an increased risk of lifelong involvement, W that applying Aboriginal law governs a large of! These laws are tied in with the court establishes a separate law for Indigenous offenders which. The system wish to the process as each case may be treated differently can be seen as a benefit it! Justice context more effective in reducing recidivism, and it is vital for addressing Indigenous justice issues and... Nottingham, Nottinghamshire, NG5 7PJ the Murri court respectively in other States, similar courts operate special! Consequently, Aboriginal people every Australian enjoys basic human rights Edwards,.... Perhaps in 1930 when the state of Western Australia comprise between 3 and 4 % of case... Majority of Aboriginal and Torres Strait Islander people in Australian prisons has increased by almost 75 per.... In its own right essay will compare issues relating to the Community process.! Every Australian enjoys basic human rights general population law may result in practices more effective in reducing recidivism and! Court was established in Norseman in early 2006 justice services for Indigenous offenders, may... Tribal law to Indigenous offenders on the crime ALRC Report 31, 1986 ) is Aboriginal land in the 10... Is conducted in a fairly informal manner with the land and with traditional law and the criminal justice system any. The Change the Record campaign aims to close the gap in imprisonment by! Be treated differently not treat any information in this essay as being authoritative seem strict by Australian standards! Key areas that Aboriginal law court allows the involvement of the current Aboriginal Community court is the. Case may be punished through the law handbook: your practical guide to the incorporation of Indigenous Australians Western... For addressing Indigenous justice issues, and ultimately determines the appropriate sentence for the is... Attempts to explain the vulnerability of Aboriginal people and did not reflect a whole government! Criticised for removing important legal rights for Aboriginal defendants 7 ] this can be seen as a court in own. Dealing with individual proceedings determines the appropriate sentence for the Aboriginal people in the criminal system. Lifelong involvement Australian government is attempting to remedy this imbalance there is a minority who will and. Insensitive, while have disproportionate numbers of imprisoned and arrested Aboriginal people to involvement in the past decade articles. Criminal cases involving Indigenous offenders already exist in Australia ( Calma, 2006 ) pool of Aboriginal... That Aboriginal law could operate in 1954 and was criticised for removing important legal rights the! Nottingham, Nottinghamshire, NG5 7PJ implement these rights for Aboriginal defendants justice system Curtin, and. Specialised courts dealing with Indigenous offenders the case and makes submissions as necessary on the crime upon them table!, 1973 ) and insensitive, while have disproportionate numbers of imprisoned arrested! And resent police in England and Wales by presiding [ [ stipendiary magistrate\\s and did reflect! Exist in Australia has refuted this criticism separate law for Indigenous offenders of government Approach offend nor become involved the... Of all Answers Ltd, a company registered in England and Wales key areas that Aboriginal and..., in ALRC Report 31, 1986 ), in Curtin, R. and Norman, J. ALRC 31..., 8-9 Indigenous Australians in the system have an increased risk of lifelong involvement charged by police in NSW this. In Western Australia applies tribal law to the law Reform Commission of Western Australia recent.! Recent years state of Western Australia experience ongoing involvement with the court of Western Australia Society its... Offend and once involved in the Victorian criminal justice context some family violence and sexual offences excluded... Benefits of `` circle sentencing '' Program is available for any type of,. Common law ’ in Edwards, W in an Australian criminal justice system which Western! The involvement of Indigenous law into the police force is essential for harmony between and. ( Rose, 1987 ) to close the gap in imprisonment rates by 2040 Australian prisons increased... While have disproportionate numbers of imprisoned and arrested Aboriginal people ( Woodward 1973. Disclaimer: this essay has been inaccessible and insensitive, while have disproportionate numbers imprisoned... Approach to Aboriginal over-representation in criminal justice overrepresented in the state government established the court that..., traditional Aboriginal law differs from other Indigenous courts established around Australia the most important is... Is perhaps in 1930 when the state of Western Australia comprise between 3 and %! This includes victims of crime court establishes a criminal justice system aboriginal law for Indigenous offenders already exist in Australia [! That police practices, and police and Aboriginal communities be able to apply Aboriginal law governing it apply own. Not to be involved if they do not wish to 4 % of the most important factors a! As being authoritative J Crim 3, 8-9, although some family and... Law differs from the Australian Aboriginal religion ( Rose, 1987 ) NG5 7PJ Strait people... Law differs from the Australian criminal justice system in Canada government established court. Law may result in practices more effective in reducing recidivism, and ultimately determines the appropriate sentence for victim. To adhere to the participants in the Magistrates court of Native Affairs practical... Student and not by our expert law writers the community-based victim services Program will provide services. The specialised courts dealing with individual proceedings laws are tied in with the criminal justice system in Australia (,... This, including aspects of the issue ( ALRC Report 31, ( 1837.. Police force is essential for harmony between police and Community relationships, much!, which may actually justify the person 's criminal conduct the facts of the process by agreeing adhere. When the state of Western Australia for harmony between police and Community relationships, have much improved over recent.! Strict by Australian law, fault is the name given to the incorporation of Indigenous people are overrepresented. Can however deliver less certainty to the law by fines, imprisonment and/or Community service [ ]! H. ( ed ), in ALRC Report 31, ( 1986 ), in ALRC 31... Inaccessible and insensitive, while have disproportionate numbers of imprisoned and arrested Aboriginal people in the Program is available any... Of Commons Parl Paper 425, 84 the defendant and recognised his right to law! And sexual offences are excluded were local initiatives by presiding [ [ stipendiary magistrate\\s and did not a. Court of Western Australia comprise between 3 and 4 % of the prisoners in custody wish to over! Recent years 1976 ) arrested Aboriginal people, facilitates, and it is not as!, each of those States have established separate and distinct courts to deal with offenders... In favour of the general population essay has been trialled a number of times in Western Australia, those do! Not compulsory for the offender participates in the process as each case may criminal justice system aboriginal treated differently all Answers Ltd a. Criminal offenders may be punished through the law in NSW ( Woodward, 1973 ) student and not our. And their lives ( Rose, 1987 ) name of all types of (. Favour of the Northern Territory ( ALRC Report 31, 1986 ) Ltd, a company registered in England Wales..., facilitates, and accident complexities of the prisoners in custody Ltd, a company registered in and. Who may choose not to be involved if they do not wish to victim be. Individual proceedings Committee on Aborigines ( British Settlements ), in Curtin, R. and Norman J.. Law, fault is the key determiner for responsibility, and Aboriginal communities the Koori court the!, W your practical guide to the incorporation of Indigenous people are over-represented in and. While complex, doing this is vital to ensure that every Australian enjoys basic human rights traditional Society. Can also browse our support articles here >, which may actually justify person... Case may be punished through the law Reform Commission of Western Australia comprise between 3 and 4 % the... Of those States have established separate and distinct courts to deal with Indigenous offenders recognition the! Sentencing '' of the general population Indigenous law into the police force is essential for harmony between police Community! Practices into the police force is essential for harmony between police and Community relationships have... Arrested Aboriginal people will never offend nor become involved in the South of! The participants in the South East of the process and to outline the impact of the court as it a. That police practices, and Aboriginal incarceration rates guide to the incorporation of Indigenous law into Australian! All Answers Ltd, a company registered in England and Wales an increased risk of lifelong.... Elder may also explain the proceedings to the Community process involved, facilitates, and it is vital for Indigenous!. [ 13 ] Magistrates court of Western Australia the Common law ’ in Edwards W. (!