Critically discuss by reference to the administration of the criminal law in respect of Australian Aboriginal Peoples.

Student Name: Julia PU Student No.: 30646723

Question: Critically discuss by reference to the administration of the

criminal law in respect of Australian Aboriginal Peoples.

The administration of the criminal law in respect of Australian Aboriginal peoples can be explored through two aspects, the judicial recognition of Aboriginal customary law as well as the mandatory sentencing policy. In this essay, these two distinct areas will be examined respectively. Discussions on these two topics will include both the its beneficiaries and criticisms. Cases and judgments as well as statistics will be provided and used to enrich discussion and illustration.

First of all, should Australian legal system hold judicial recognition for Aboriginal customary law? Mason CJ holds strong rejection to this question. He clearly pointed out in Mabo (No2), although there was not inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law. English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating outside it. In Walker v New South Wales he again denied the possibility of judicial recognition of Aboriginal customary law in his decision.

On the other hand, Zdenkowski argues that the recognition of Aboriginal customary punishment by the general legal system is well established. Zdenkowski examines the legal and policy implications of such recognition and also the issues that raised subsequently. In Wilson Jagamara Walker , the court reduced the penalty it would have imposed on a person convicted of manslaughter because of the expectation that the defendant would receive customary punishment traditional “payback” by spearing in the thigh for his crime. Martin CJ recognized and took into account the mitigating factors operating in the defendant’s favor, in which the expected “payback” punishment was among the other personal difficulties and circumstances. Therefore, he suspended the 3-year sentence forthwith upon the entry by he defendant into a 2-year good behavior bond on his own recognizance in the sum of $1000. This decision regards the Aboriginal customary punishment as part of its consideration and adopts “a rather pragmatic approach” to it.

There are nevertheless underlying problems raised alongside. Firstly, such decision which involves the recognition of Aboriginal customary punishment runs a risk in opposing to the basic principle that all people should stand equal before the law. This recognition which results in different criminal sanctions applying to different persons for the same conduct offends the basic principle. Accepting the Aboriginal customary punishment can be recognized in some circumstance Australian courts accept that the general legal system is presumptively applicable but will make concession to specific cultural arguments.

Secondly, the issue in relation to the legal statues of “pay-back” is questioned, whether spearing in thigh itself is amount unlawful act. Under the general law, if such act is not consented to by the person speared it is clearly a common assault if not an aggravated assault in the case of a nominal or symbolic spearing. Several other judges deplored against this issue in their judgments. Bailey J in R v Barnes believed that it would be “quite wrong for a judge to structure his judgment to facilitate an unlawful act”. Mildren J in Minor held that the contemplated ...

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Furthermore, although in Walker evidence regarding the “pay-back” is required, no detailed treatments are indicated. The formal method and the process of the “pay-back” as well as the mode of proof are not identified. The authoritative power of the elder (who was in the position to assure the “pay-back” would be done properly) remain unjustified.

These are only problems raised on a surface level. To extend these issues to a large scope in culture discourse, ignorance of the value of cultural customs will be disrespectful, nevertheless the precision of the account of cultural customs remain challenged as all cultural are independent and distinct. Therefore the intrinsic question challenges the validity of claims to establish general rules for evaluating the behavior of all cultural. The only solution to it is to determine where and how to draw a limit on the recognition of customary punishment, in which cultural customs and legal issues will meet at a more comprising level and the basic principle of equal treatment on all individuals will not be defended.

Rather than leaving recognition of customary law to individual judges and magistrates, the LRC recommended legislative recognition. In December 2000, the NSWLRC in its Report 96, “Sentencing: Aboriginal Offenders (2000)” recommended that New South Wales courts should take customary law into account when sentencing Indigenous offenders.

Mandatory sentencing was introduced to Western Australia and Northern Territory in 1996 and 1997. Its aim is to achieve deterrence purpose, and its execution varies as applying to different states. In Western Australia, mandatory sentencing added to the previous single offence of burglary punishable by 14 years imprisonment, so-called home burglary punishable by 18 years and aggravated burglary by 20 years. A 12-month minimum penalty applies to third and subsequent offences. Nevertheless, in Northern Territory mandatory sentencing apply to a wide range of property offences including stealing, robbery assault with intent to steal, criminal damage, unlawful entry, unlawful use of a motor vehicle, receiving stolen property and possession of goods reasonably suspend of being stolen. For adults, the courts impose a 14-day term of imprisonment for a first conviction on a prescribed offence; a minimum of 90 days imprisonment on a second prescribed offence and 12 months imprisonment on the third. Juveniles on a second offence must serve a minimum of 28 days.

According to D Johnson and G Zdenkowski and their findings in relation to the effects of the Northern Territory laws in “Mandatory Injustice: Compulsory Imprisonment in the Northern Territory (2000)” ; as well as the information about juveniles provided by the Northern Australian Aboriginal Legal Aid Service 1999. Statistics and information from both sources were among evidences, which uncovered the fact that mandatory sentencing policies have not worked in terms of their claimed justification of deterrence, selective incapacitation and reduction in crime rates.

The government and many advocates of mandatory sentencing may consistently insist and see such punishment as “equal operation of law”. However, is it really so? There are a number of grounds that provide space for further examination on this issue.

Firstly, the geographical grounds attract attention. Citizens live in Western Australia and Northern Territory do not receive equality of treatment as residents live in other part of the country are not under the influence of mandatory sentencing. This offends the basic principle that criminal sanctions should equally apply to all persons for the same conduct.

Secondly, the policies discriminate on a racial basis because of the specific offences selected to attract mandatory terms. Car stealing, burglary and criminal damage, are relatively minor property offences at higher possibilities of being committed by young, Indigenous and poor people. This contrasts to a range of other minor property offences such as fraud, more serious white collar crime property offence, which are more likely to be committed by whites. This racially based selectivity in the prescribed offences appears to operate as an integral part of the mandatory sentencing regimes in Western Australia and Northern Territory.

Consequently, discrimination involves in treating unequal equally. This issue deals with the desirability and also the affordability of daily commodities. For example, most of people do not need to steal bread or milk because they can afford it, whereas poor or young people (often members from minority groups in society or with lower social states) who lack such financial viability are more likely to do so. Therefore, mandatory sentencing as the so-called equal application of law to unequal does not produce fairness and equality but unfairness and deepening inequality. Fairness is a consequence of adjustment to the variability of circumstance, yet this is precisely what mandatory sentencing prevents.

The following is a table, which shows the trend of Aboriginal population and Adult Imprisonment in Australia in 1999.

Table 1: Aboriginal Population and Adult Imprisonment in Australia, 1999

These results provide supplementary information to the discussion made earlier, which include the issue of discrimination exercised on geographical and racial grounds. Both Western Australia (3.2%) and North Territory (28.2%) are ranked as the first two states that contain the largest population of Aboriginal residents. In addition, they are among the top two states where Aboriginal prisoners are at 34% and 77.2% of the total prisoners.

There is also criticism on the way mandatory sentencing policies and crimes more generally provide a coded language for more overtly racial sentiments. “Aboriginal conduct and presence is apprehended, interpreted and policed within a field of vision prestructured by racial anxieties, social friction and the anticipation of danger in various form.”

In “Punishment and Modern Society” , Garland suggested that despite recurring Utopian hopes and the exaggerated claims of some reformers, the simple fact is that no method of punishment has ever achieved high rates of reform or of crime control – and no method ever will. All punishments regularly ‘fail’ in this respect because it is only the mainstream processes of socialization, which are able to promote proper conduct on a consistent and regular basis.

In conclusion, two aspects of the administration of the criminal law in respect of Australian Aboriginal peoples are explored, the judicial recognition of Aboriginal customary law as well as the mandatory sentencing policy. There are arguments both for and against the judicial recognition of Aboriginal customary law and the mandatory sentencing policy. Discussions on these two topics include both the its beneficiaries and criticisms. A varied cases and judgments as well as statistics provide facts and foundation to illustration. In examining two aspects of the administration of the criminal law in respect of Australian Aboriginal peoples only allow exploration on part of its overall framework. This issue is an important one that largely influences the development in Australian criminal law administration.

Bibliography:

“Chapter 12.2.6: Customary Punishment” in D. Brown, D Farrier, D. Neal and D. Weisbrot, Criminal Laws, 3rd Edition, Federation Press, 1996, pp. 1397-1401.

“Chapter 12.3.6: Mandatory sentencing” in D. Brown, D Farrier, D. Neal and D. Weisbrot, Criminal Laws, 3rd Edition, Federation Press, 1996, pp. 1408-1411.

David Garland, “Punishment and Modern Society”, (1990) 287, 288 in D. Brown, D Farrier, D. Neal and D. Weisbrot, Criminal Laws, 3rd Edition, Federation Press, 1996, pp.1480.

George Zdenkowski, “Customary Punishment and Pragmatism: Some Unresolved

Dilemmas”, (1994) 3 (68) Aboriginal Law Bulletin 26-27.

5. Mabo v Queensland (No 2) (1992) 107 ALR 1.

6. Minor (1992) 2 NTLR 183.

R v Barnes (1997) 96 A Crim R 593.

Russell Hogg, “Penalty and Modes of Regulating Indigenous Peoples in

Australia” (2000) 3 Punishment and Society in D. Brown, D Farrier, D. Neal and

D. Weisbrot, Criminal Laws, 3rd Edition, Federation Press, 1996, pp. 1464.

Walker v New South Wales (1994) 69 ALJR 111.

10. Wilson Jagamara Walker (Supreme Court of the Northern Territory, Martin CJ,

Unreported 10 February 1994 SCC No 46 of 1993).

Tutor: Carrie Chan Class: Law 205 Tuesday 11-1pm

Mabo v Queensland (No 2) (1992) 107 ALR 1

2 Walker v New South Wales (1994) 69 ALJR 111.

3 George Zdenkowski, “Customary Punishment and Pragmatism: Some Unresolved

Dilemmas”, (1994) 3 (68) Aboriginal Law Bulletin, in “Customary Punishment” in D.

Brown, D Farrier, D. Neal and D. Weisbrot, Criminal Laws, 3rd Edition, Federation

Press, 1996, pp. 1399.

4 Wilson Jagamara Walker (Supreme Court of the Northern Territory, Martin CJ,

Unreported 10 February 1994 SCC No 46 of 1993).

5 George Zdenkowski, “Customary Punishment and Pragmatism: Some Unresolved

Dilemmas”, (1994) 3 (68) Aboriginal Law Bulletin, “Customary Punishment” in D.

Brown, D Farrier, D. Neal and D.Weisbrot, Criminal Laws, 3rd Edition, Federation

Press, 1996, pp. 1399.

6 Ibid., at pp.1399.

7 R v Barnes (1997) 96 A Crim R 593.

8 Minor (1992) 2 NTLR 183.

9 “Customary Punishment” in D. Brown, D Farrier, D. Neal and D. Weisbrot, Criminal

Laws, 3rd Edition, Federation Press, 1996, pp. 1397.

10 “Mandatory sentencing” in D. Brown, D Farrier, D. Neal and D. Weisbrot, Criminal

Laws, 3rd Edition, Federation Press, 1996, pp. 1408.

11 D Johnson and G Zdenkowski, Mandatory Injustice: Compulsory Imprisonment in the

Northern Territory (2000), pp. 73-96.

12 Ibid., at pp104-105.

13 Russell Hogg, “Penalty and Modes of Regulating Indigenous Peoples in Australia”

(2000) 3 Punishment and Society in D. Brown, D Farrier, D. Neal and D. Weisbrot,

Criminal Laws, 3rd Edition, Federation Press, 1996, pp. 1464.

14 Ibid., at pp. 1411.

Ibid., at pp. 1412.

David Garland, “Punishment and Modern Society”, (1990) 287, 288 in D. Brown, D Farrier, D. Neal and D. Weisbrot, Criminal Laws, 3rd Edition, Federation Press, 1996, pp.1480.