Aboriginal law & justice
Contemporary law and justice has replaced traditional Aboriginal law and caused much pain and suffering.
Aboriginal deaths in custody and Aboriginal prison rates are perpetual problems. Circle sentencing seems to break the often deadly prison cycle.
Selected statistics
- 83%
- Percentage of the prison population in the Northern Territory that is Indigenous [6]. The NT has the highest incarceration rate per 100,000 people [7].
- 38.5%
- Percentage of the prison population in Western Australia that is Aboriginal. Proportion of the population who identifies as Aboriginal: 3.5%. [2]
- 26%
- Percentage of the prison population in Australia that is Indigenous [7]. Aboriginal people make up 2.5% of the Australian population.
- 15
- Approximate number of Aboriginal barristers in Australia in 2015 [26].
- 14
- Times higher: The likelihood that an Aboriginal person is locked up, compared to a non-Aboriginal Australian [8].
- 70%
- Percentage of youth in prison who have been sexually assaulted as children [12].
- 48%
- Percentage by which the Indigenous imprisonment rate of NSW rose between 2001 and 2008 [11].
- 7
- Times higher: The probability that an Aboriginal person is the victim of a homicide, compared to a non-Aboriginal person. One in 10 homicide victims is Aboriginal. [13]
- 33%
- Percentage of people involved in police custody incidents who are Aboriginal. [14]
- 92%
- Percentage of Australia's Aboriginal prison population who is male. [7]
- 3.6
- Average sentence length of Indigenous prisoners in years (non-Indigenous: 5.3) [8].
- $308
- Daily rate for a room at the Hilton in Sydney, including WiFi [16].
- $292
- Average daily cost to the Australian government to keep a prisoner locked up [25].
- $1b
- Money the NSW government spends each year to maintain its prison system [11].
- 11
- Times higher: The likelihood that an Aboriginal child aged between 10 and 14 is charged by police, compared to a non-Aboriginal child [17].
- 75%
- Percentage of Aboriginal people who return to NSW jails after 11 months. 50% of non-Indigenous inmates return to jail after an average of 13 months [18].
- 48%
- Percentage of Aboriginal juveniles who end up in court. Same figure for non-Indigenous juveniles: 28% [12].
- 75%
- Percentage of detainees placed in custody before any finding of guilt, sometimes because family circumstances will not allow them to meet bail conditions. Many of the charges do not even carry a custodial penalty. [20].
- 300
- Minimum number of Indigenous people being arrested and taken into custody every week in NSW [21].
- 10%
- Percentage of Aboriginal children who have a family member who has spent time in gaol. [22]
- 18%
- Percentage of Aboriginal homicide offenders in 2007-08. Aboriginal population share: 2.3%. [13]
- 3.8bn
- Investment the NSW government announced in June 2016 to spend over 4 years to cover 7,000 additional prison beds. [27]
List of linked articles
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Aboriginality, disadvantage and sentencing
When sentencing, courts should consider a person’s background, including their social situation. The offence cannot be seen in isolation.
Aboriginality, disadvantage and sentencing
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Australia’s first Aboriginal Legal Service
Founded in 1970, Australia’s first Aboriginal Legal Service offers free legal service across a variety of areas.
Australia’s first Aboriginal Legal Service
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Juvenile detention
Aboriginal youth are overrepresented in jails. Detention statistics make experts talk about a “state crisis”.
High detention rates have many causes. Being at the wrong place at the wrong time is sometimes enough.
Juvenile detention
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Reducing Aboriginal incarceration rates
Numerous measures have been proposed to reduce incarceration rates of Aboriginal Australians.
Programs range from spiritual healing programs to justice reinvestment.
Reducing Aboriginal incarceration rates
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Improving Aboriginal prison conditions
Prisons need to cater for specific cultural needs of their Aboriginal inmates and avoid ‘structural racism’. Aboriginal-sensitive standards can help.
Improving Aboriginal prison conditions
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Aboriginal prison rates
Aboriginal and Torres Strait Islander people are massively overrepresented in the criminal justice system of Australia.
Aboriginal people represent only 3% of the total population, yet more than 28% of Australia’s prison population are Aboriginal.
Aboriginal prison rates
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Black people, white law
Aboriginal people following traditional law get caught in white law, and some do not fully understand the white man’s law system in the first place.
Black people, white law
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Mental health at its worst in prison
Already a disadvantaged group in Australia, Aboriginal people’s mental health suffers badly when they are imprisoned.
Up to 93% of Aboriginal detainees have some form of mental illness.
Mental health at its worst in prison
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Justice not without issues
Justice is not without issues for Aboriginal people.
Many wonder what the outcome would have been had the plaintiff not been Aboriginal.
Justice not without issues
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Aboriginal youth programs can work
Youth programs for young Aboriginal people can break a cycle of violence and get them in touch with their culture.
These programs give them self-respect and self-confidence, and allow them to become successful role models for others.
Aboriginal youth programs can work
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Circle sentencing
Circle sentencing tries to avoid gaol time for Aboriginal offenders by bringing them together with elders.
The offender must plead guilty, and punishments are not mild. The system has many benefits for all involved.
Circle sentencing
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Tribal punishment, customary law & payback
Aboriginal tribal law is often seen as harsh and brutal, but it ensured order and discipline. Payback is the most known form of customary law.
Payback has survived until today and is still practiced which leads to conflicts between white law and tribal law.
Tribal punishment, customary law & payback
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Royal Commission into Aboriginal deaths in custody
A royal commission in 1987 investigated Aboriginal deaths in custody over a 10-year period, giving over 330 recommendations.
Its recommendations are still valid today, but very few have been implemented. Every year, Aboriginal people continue to die in custody.
Royal Commission into Aboriginal deaths in custody
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Mandatory sentencing
Australia’s mandatory sentencing with its exact penalty system has been labelled racist by the UN.
After being sentenced youths are likely to be abused or enter a criminal career, and some commit suicide.
Only the Northern Territory has abolished mandatory sentencing.
Mandatory sentencing
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Aboriginal-police relations
The relationship between Aboriginal people and police in Australia is tense.
Harsh treatment, inappropriate behaviour and seemingly excessive sentences are the most common issues.
Aboriginal-police relations
List of short articles
If Aboriginal customary law and white law come together and recognise one another, they can change the direction everything is heading in.—Yidumduma Bill Harney, Aboriginal lawman [1]
There's more than meets the eye in this cartoon. Many Aboriginal people sense there is another reason behind them being singled out--their Aboriginality. Cartoon: Danny Eastwood, Koori Mail [19]Genocide legal under Australian law
In 1998, the Australian Capital Territory Supreme Court deliberated about a test case brought by members of the Aboriginal Tent Embassy which was erected in 1972 in front of Parliament House in Canberra.
In the test case the Court’s Justice Kenneth Crispin found that “there is ample evidence to satisfy me that acts of genocide were committed during the colonisation of Australia” [23]. But no-one took notice.
In 1999 the full bench of the Federal Court [10] and later the High Court ruled that there was no law against genocide in Australia, nor does Australia have any effective remedies for crimes against humanity. Even worse is the fact that the counsel for the Prime Minister in the case argued that the Genocide Convention was deliberately not incorporated.
A newspaper at the time stated that “accused war criminals… who have become Australian citizens, will not be effected… because politicians fear that [incorporation]... will also open the way for the Aboriginal claims of genocide.” [9]
In July 1949 Australia had ratified the United Nations’ Convention on the Prevention and Punishment of the Crime of Genocide which in article 2 defines genocide as
- “killing members of the group;
- causing serious bodily or mental harm to members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- imposing measures intended to prevent births within the group; [and]
- forcibly transferring children of the group to another group.”
However, the bill Australia passed to ratify the convention did not make genocide a crime under domestic law [23].
Consequently, the Aboriginal Tent Embassy plaintiffs in 1998 lost their case on appeal to the Federal Court.
Forced removal of Aboriginal communities from their homelands, as happened when Western Australia closed “not viable” communities, fits the UN definition.
Fact Australia has one of the weakest protections of human rights in the Western world, implementing less than half the legal obligations of international human rights treaties [24].
Does extra police help?
What happens if more police are deployed to Aboriginal communities?
A study has shown that more police in Northern Territory communities reduced alcohol-related problems, but did little to ‘invisible’ crimes like marijuana use, sexual assault or stealing [4].
The research found that ‘public’ problems such as alcohol (46% people reporting improvements) and community violence (45%) had improved most. An interesting finding is that people in remote communities supported an ongoing police presence, with 75% of respondents approving a permanent police presence and 53% believing police did a good job [4]. However, there were vast differences between communities.
Police in some communities are so under-resourced that police officers refuse to continue working there [5].
Can you answer?
Question: Which three sets of rights can Aboriginal people enjoy?
Answer:
Traditional rights, Australian rights and human rights.
Resources
Indigenous Justice Clearinghouse
The Indigenous Justice Clearinghouse is a national resource on Aboriginal justice. It aims to promote discussion and disseminate relevant Aboriginal justice information to government policy makers and those working in the Aboriginal justice field.
The initiative is a collaborative partnership between the Australian Institute of Criminology (AIC) and the Standing Council on Law and Justice.
Indigenous Law Centre (ILC)
The Indigenous Law Centre was established in 1981 to develop and coordinate research, teaching and information services for Aboriginal people and the law.
The ILC conducts legal research, publishes the Indigenous Law Bulletin and Australian Indigenous Law Review, develops curricula and teaching materials and aims to advance community legal education.
The publications aim to provide critical commentary on the relationship between Aboriginal peoples and the law.