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Indigenous Australians And The Law

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While our current legal system serves the majority of our country well, there are some members of society who experience problems with our law; a major group in society that suffers from such problems is our Indigenous population. This paper will primarily focus on the legal system as it impacts upon Indigenous Australians. Topics that will be discussed will be the over-representation of these people in the judicial and prison system, plus the paper will also address socio economic issues, health issues, educational issues and living standards that place this race of people at a distinct disadvantage in the law. This paper will also make the recommendation that all Indigenous Australian’s sentenced to six months or less will in fact not be sent to prison, but be punished by their own communities’ traditional law. Currently the Australian Indigenous population is drastically over represented in our justice and corrective systems. The Queensland Government in 2004 created the Law and Justice CEO Committee, which consists of a number of chief executive officers from relevant government departments, and is chaired by Bob Atkinson, Commissioner of the Queensland Police Service. This committee was created with one primary goal and that was to reduce the over-representation of Indigenous Queenslanders in the judicial system. The goal set by this committee is to reduce the over-representation of Indigenous incarceration by 50% by the year 2011(Director General, 2006).

Australia’s Indigenous population from the late 80’s holds the record for the most incarcerated people in the world, statistically exceeding even the figures for the black South Africans during the apartheid regime (Harris, 2004). In June 2002, the Indigenous population of Australia, making up only 2% of our country’s then 18 million population outside of jail, had 4,494 members of their race incarcerated, making up 20% of our prisoner population. The figures for younger generations are even higher; statistics as gathered in NSW revealed that 35-40% of children in Juvenile detention are Indigenous Australians (Kirkland, 2002). These figures demonstrate that a disproportionate number of Indigenous people are in our prisons than white Australians or members of other nationalities living in Australia. This does not necessarily mean that a lot of Indigenous Australians are committing serious crime; the majority of Indigenous people incarcerated serve sentences of six months or less. In fact, if all Indigenous people currently in jail who are serving sentences of six months or less were let out of prison, the number of Indigenous people sentenced to prison could be reduced by 54% (Kirkland, 2002).

Exacerbating this problem is the high number of Indigenous deaths in custody. The problem of Indigenous deaths in custody was first addressed in 1987, when a special commission, the Royal Commission into Aboriginal Deaths in Custody (RCIADC) was created (Behrendt & Cunneen, 1994). When they ran this inquiry the principle focus of the inquiry was to focus on why 99 Indigenous people died while in prison and police lockups during the 1980’s. The commission examined almost every aspect of the relationship between Indigenous Australians and modern day Australian society (The 7.30 Report). Today, 399 recommendations and almost 20 years later, Indigenous Australians are still dying in custody at an unacceptably high rate (Kirkland, 2002). It is hard to know exactly why the Indigenous deaths in custody statistic is so high; it does however have a lot to do with the fact that the Indigenous population are both social and outdoor people, and most cannot tolerate being locked in a cell by themselves, especially those who have lived in Indigenous communities all their lives. Indigenous people enjoy vast open spaces, where they can continue with their traditional lifestyle, of fishing and hunting, as they have for 40,000 years. (Kirkland, 2002) Clearly the best way to reduce Indigenous deaths in custody, is to find ways to prevent them from committing crime, and when they do commit crime, to find alternative ways of dealing with them through the justice system, with incarceration being a last resort.

To put an end to Indigenous people’s deaths in custody, first the issue of why so many Indigenous people are sent to prison must be identified. There are many explanations for why so many Indigenous people break the law; the main reason behind this however is because there is a breakdown of understanding between Indigenous people and our legal system. Another significant issue is that Indigenous people believe that there is one law for white Australians and another law for black Australians. This statement can be evidenced by comments made by former ATSIC (Aboriginal and Torres Straight Islander’s Commissioner) Collin Dillon. At the time of this document being written Commissioner Dillon was also a commissioned officer in the Queensland Police Service and in fact was Australia’s highest ranked Indigenous police officer. He referred to an incident that occurred in Cairns where five teenagers attacked a homeless Indigenous person in a Cairns park. He claimed that the sentence imposed on them at the time was totally inadequate and made a number of public statements focusing on this fact. As a result of a ground swell of support the then Attorney General, Matt Foley, appealed against this decision. One of the grounds for the appeal was based on the Judge’s decision to reject racial motivation. However it was clearly evident that this in fact was a racially motivated hate crime. Dillon at the time advocated huge numbers of Indigenous people were going to jail for far less than the crime that the white children had committed, who in this instance had received community service. In Dillon’s view this went to the heart of why Indigenous people had such a poor perception of their place in the justice system (Dillon, 1999).

There are also certain cultural barriers which can cause Indigenous people trouble, especially when required to testify in court. For example, seeing images of people who have died may be culturally offensive to Indigenous Australians, however, doing so may be essential to the correct running of a trial. Also, while Australia’s laws are tailored to suit the vast majority of Australian citizens, there are certain laws which particularly disadvantage Indigenous people.

An example of a legislation which particularly disadvantages Aborigines is Mandatory Sentencing. Mandatory Sentencing first originated in California, USA, in 1994 from California’s three strike law, and soon after it was introduced it spread across almost all of the United States (Unknown 1, 2006). Under this system, if found guilty



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