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Expert seminar on Indigenous Peoples - Issue 3: Recognising Aboriginal customary law and developments in community justice mechanisms (2003)

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Issue 3: Recognising Aboriginal customary law and developments in community justice mechanisms

Submission to the Expert seminar on Indigenous Peoples and the administration of justice, Madrid, Spain, 12-14 November 2003

Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission of Australia

 

 

 

 

Introduction

This submission is made by the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of the Human Rights and Equal Opportunity Commission (HREOC) of Australia. It provides an overview of recent developments relating to:

  • the recognition of Indigenous customary law; and
  • Indigenous community justice mechanisms.

This submission complements two other submissions made by the Social Justice Commissioner.

In 1986 the Australian Law Reform Commission completed a ten year inquiry into processes for recognising Aboriginal Customary Law. [1] While the recommendations of that inquiry enjoy wide support from Indigenous organisations, there remains only limited recognition provided to Indigenous customary law through the criminal justice system.

At present there are two large inquiries underway in Australia relating to customary law – one in the Northern Territory and the other in Western Australia. The Social Justice Commissioner made a lengthy submission to the Northern Territory inquiry. In that submission it was stated that:

there is currently a crisis in Indigenous communities. It is reflected in all too familiar statistics about the over-representation of Indigenous men, women and children in criminal justice processes and the care and protection system; as well as in health statistics and rates of violence. Ultimately, one thing that these statistics reflect is the breakdown of Indigenous community and family structures. They indicate the deterioration of traditional, customary law processes for regulating the behaviour in communities. This is due in part to the intervention of the formal legal system through removal from country, historical lack of recognition of traditional rights to country and non-recognition of customary law processes as an integral component of the operation of Aboriginal families and societies in the Northern Territory…

Customary law should be treated by the Government as integral to attempts to develop and maintain functional, self-determining Aboriginal communities. Customary Law is therefore more than a mitigating factor in sentencing processes before the courts. It is about providing recognition to Aboriginal customary processes for healing communities, resolving disputes and restoring law and order. Customary law also continues to exist across the Territory and to be exercised, in varying degrees and in different ways, by different Aboriginal communities. Given the diversity of circumstances of different Aboriginal communities across the Territory, there will be no one size fits all model and care will have to be taken to ensure that any form of recognition of customary law is grounded in the traditions, customs, experiences and day to day livelihoods of different communities and does not seek to impose additional forms of regulation on Indigenous peoples. [2]

The submission to the NT inquiry provided an overview of recent developments in Indigenous policy which are relevant to Aboriginal Customary Law and which provide guidance as to how Aboriginal Customary Law might appropriately be recognised. It emphasised the need to build Aboriginal community capacity and supporting Indigenous governance mechanisms in order to recognise, strengthen and provide support to Aboriginal Customary Law, particularly within the context of criminal justice and family violence issues.

This submission discusses two issues relating to recognising Indigenous customary law:

  • Relevant human rights principles for determining the circumstances in which Aboriginal Customary Law should be recognised formally or informally, including consideration for recognising Aboriginal Customary Law in a manner that protects the rights of Aboriginal women and children; and
  • Recent developments in Indigenous community justice mechanisms.

Recognising Aboriginal Customary law and human rights

All proposals for the recognition of Aboriginal Customary Law in Australia have taken as their starting point that any such recognition must be consistent with human rights standards. The Social Justice Commissioner endorses this requirement as essential to any recognition of Aboriginal Customary Law.

Recognising Aboriginal Customary Law consistently with human rights standards raises two main issues. First, is whether specific recognition of Aboriginal Customary Law is of itself discriminatory; and secondly, how customary law can be recognised in a manner consistent with human rights standards.

a) Non-discrimination and the recognition of Aboriginal Customary Law

First, there is a threshold question as to whether recognition of Aboriginal Customary Law creates a situation of favourable treatment for Indigenous peoples that results in unequal treatment or discrimination against non-Indigenous people. This is an issue which regularly arises in public debates about Aboriginal Customary Law in Australia.

In international law, the promotion of equality does not necessitate the rejection of difference. It accepts that there are circumstances in which differential treatment is warranted and thereby permitted.

The Human Rights Committee, which oversees implementation of the ICCPR, and the Committee on the Elimination of Racial Discrimination, have adopted a substantive equality approach to the meaning of non-discrimination. The Human Rights Committee has indicated that equality 'does not mean identical treatment in every instance', and that the Committee is concerned with 'problems of discrimination in fact' not just discrimination in law. The Committee on the Elimination of Racial Discrimination has stated:

The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.

In accordance with this, there are basically two types of differential treatment that are permissible in order to achieve equality, and which are considered to be non-discriminatory. These are special measures (or affirmative action) and actions that legitimately recognise cultural difference. Special measures, referred to in Article 1(4) of the International Convention on the Elimination of Racial Discrimination, are remedial provisions aimed at raising segments of the community who are not equal to a position of equality within society.

In addition, there are also certain circumstances where it is appropriate to recognise the distinct cultural characteristics of particular groups, especially minorities. The critical issue is to identify those differences that justify a differentiation in treatment. Judge Tanaka in the South West Africa Case stated that differences which minority groups may choose to protect are the relevant differences, rather than oppressive distinctions ascribed in order to justify the reduction of rights. There must be a reasonable, objective and proportionate nexus between the relevant differences with its legal recognition to achieve equality of treatment.

Judge Tanaka explained this in the context of the protection of minority groups as follows:

a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on the members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have the choice to accept it or not.

The Committee on the Elimination of Racial Discrimination has recognised that measures that seek to protect the culture and identity of Indigenous peoples may constitute a legitimate, non-discriminatory differentiation of treatment. The Committee has recognised that Indigenous peoples worldwide:

have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.

Consequently, they have called on parties to the Convention to:

Recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation…

Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent; (and)

Ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages.

In the Social Justice Commissioner's view, Aboriginal Customary Law could be recognised as a legitimate differentiation of treatment that does not offend the prohibition of racial discrimination in international law or its domestic implementation in Australia through sections 9 or 10 of the Racial Discrimination Act 1975 (Cth). Should a more limited interpretation be adopted [3], Aboriginal Customary Law would also fall within the exception to the prohibition of racial discrimination in the Racial Discrimination Act by being accepted as a special measure under section 8(1) of the Act. Recognition of customary law as a special measure would leave the continuation of laws providing formal and distinct recognition of customary law under potential review of the Courts at any stage.

b) Resolving conflicts between human rights standards and Aboriginal Customary Law

The second, and more difficult, issue that arises in relation to the recognition of Aboriginal Customary Law from a human rights perspective is determining how to resolve apparent conflicts between human rights standards and Aboriginal Customary Law. How, for example, do you apply in a consistent manner human rights standards that recognise and protect the cultures of minority groups or the collective rights of Indigenous peoples with individual human rights such as the rights of women and children to be free from discrimination and violence? And are there circumstances in which potential breaches of individuals' rights will be permitted in order to protect the rights of the group as a whole?

There are four sets of rights that have emerged in the international human rights system to date in relation to Indigenous peoples that are relevant to this issue. These are:

1. The general, [individual]… human rights to which everyone is entitled, found in the Universal Declaration on Human Rights and elaborated in subsequent instruments, such as the two International Covenants of 1966…

2. The additional rights specific to persons belonging to national or ethnic, religious or linguistic minorities, found in Article 27 of the International Covenant on Civil and Political Rights (ICCPR), the Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities, and in several regional instruments dealing with the rights of persons belonging to minorities. They are formulated as rights of persons and therefore individual rights.

3. The special rights of indigenous peoples and of indigenous individuals, found in the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) (68) and - if and when adopted - in the Draft Declaration on the Rights of Indigenous Peoples, adopted by the Working Group on Indigenous Populations (WGIP) in 1993 and now before the Commission on Human Rights. They are mostly rights of groups ("peoples") and therefore collective rights

4. The rights of peoples [to self-determination] as provided for in common Article 1 to the two International Covenants of 1966. [4]

The Aboriginal and Torres Strait Islander Social Justice Commissioner has argued that the right of self-determination (category 4) above) applies to the situation of Indigenous peoples. [5]

The challenge for the international human rights system is to apply these different categories of standards consistently with each other. This system recognises these rights as indivisible, with no hierarchy of recognition of these rights or special status given to one over the other.

It should be recognised that in many instances there will be no conflict between these sets of rights and they will be able operate in an interdependent manner. As the Australian Race Discrimination Commissioner noted in 1995:

The claim that collective rights jeopardise traditional individual rights misunderstands the interdependent relationship between group and individual rights. The apparent tension between individual and collective rights is partially resolved once it is recognised that certain individual rights cannot be exercised in isolation from the community. This is particularly the case in indigenous communities… It is often the case that the protection and promotion of collective rights is a pre-requisite for the exercise and enjoyment of individual rights. The right of an Aboriginal or Torres Strait Islander person to protect and enjoy his or her culture, for example, cannot be exercised if an indigenous culture is struggling to survive within the majority culture and the indigenous community has no right to protect and develop its culture. If rights are not granted collectively to indigenous peoples which enable them to defend their culture, the practice of their religion and the use of their languages, the result is unequal and unjust treatment. [6]

This reflects a vital point about the recognition of Aboriginal Customary Law - namely, the recognition of Aboriginal peoples' minority group rights and collective rights have the capacity to strengthen social structures within Aboriginal communities as well as the observance of law and order.

There will, however, be other circumstances where individual and collective rights are in opposition and a balance must be struck. This does not mean that collective and individual rights are irreconcilable. Decisions made under the Optional Protocol to the ICCPR and General Comments interpreting the scope of the ICCPR by the United Nations Human Rights Committee in relation to Article 27 of the Covenant, for example, provide guidance on how this contest between collective and individual rights should be resolved.

The Human Rights Committee has noted that this provision applies to Indigenous peoples, and that it creates a positive obligation on States to protect such cultures. The Committee has, however, placed limits on those measures that can be recognised. So while it acknowledges that positive measures by States may be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, it also notes that:

such positive measures must respect the provisions of articles 2.1 and 26 of the Covenant (relating to non-discrimination) both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria. [7]

Similarly, the Committee notes that 'none of the rights protected under Article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with other provisions of the Covenant'. This includes, for example, Article 6 (the inherent right to life); Article 7 (torture or cruel, inhuman or degrading treatment); and Article 23 (requirement of free and informed consent for marriage). In relation to Article 3 of the Covenant (equality between men and women), the Committee has observed that:

Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes… States should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights…

The rights which persons belonging to minorities enjoy under Article 27 of the Covenant in respect of their language, culture and religion do not authorise any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law. [8]

The Committee has expressed concern about domestic violence, including forced sexual intercourse, within the context of marriage. [9]

The provisions of the ICCPR are also to be read consistently with the interpretation of similar relevant rights under other conventions. So, for example, Article 27 alongside the guarantees of non-discrimination, equality of men and women, and equality before the law in Articles 2, 3 and 26 of the Covenant should be read consistently with related provisions of the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

The Committee on the Elimination of Discrimination Against Women has noted that Gender-based violence is a form of discrimination within the meaning of CEDAWand notes that violence in relation to the following rights and freedoms will constitute discrimination in Article 1 of CEDAW:

  • The right to life;
  • The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment;
  • The right to liberty and security of person;
  • The right to equal protection under the law; and
  • The right to equality in the family. [10]

The Committee on the Elimination of Discrimination Against Women has also noted that Articles 2,5,11,12 and 16 of CEDAW require States to act to protect women against violence of any kind occurring within the family, workplace or any other area of social life and that traditional attitudes which subordinate women, including forced marriages, will breach Articles 2(f), 5 and 10(c) of CEDAW. The inclusion of these matters within the definition of discrimination against women is a relevant consideration in consistently applying Article 27 with the non-discrimination provisions of the ICCPR (especially Article 3).

The Human Rights Committee has also stated that the purpose of protection of minorities under Article 27 must be justifiable as being 'directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned'. In an Individual Communication under the First Optional Protocol to the Covenant the Committee has also indicated that:

The right to enjoy one's culture cannot be determined in abstracto but has to be placed in context. In this connection, the Committee observes that article 27 does not only protect traditional means of livelihood of national minorities… that the authors may have adapted their methods… and practice it with the help of modern technology does not prevent them from invoking article 27 of the Covenant.

Decisions under the Optional Protocol to the ICCPR demonstrate how the Committee seeks to weigh up these considerations with the recognition of minority rights in Article 27. The specific rights of minorities and indigenous peoples that have been recognised under Article 27 have been qualified by the requirement that their enjoyment shall not prejudice the enjoyment by all persons, including individuals from within the group, of the universally recognised human rights and fundamental freedoms (ie, the rights listed in category a) above).

In the Individual Communication of Kitok v Sweden the Committee stated that 'a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole'. In that instance, the restriction being complained of was a limitation on the ability of the individual complainant to conduct reindeer husbandry activities due to legislative provisions which sought to protect the Sami peoples' rights to practice reindeer husbandry as a whole. This restriction, based on issues of sustainability of reindeer husbandry practices was seen by the Committee as justified as a reasonable restriction.

In Lovelace v Canada the Committee had to consider the effect of a legislative provision that denied an Indigenous women who married a non-Indigenous man her status as an on-reserve Indian (and therefore her right to reside on her peoples' reservation). The relevant legislation did not provide that an Indigenous man would lose his on-reserve status should he marry a non-Indigenous women. The Committee stated that Article 27 had to be read consistently with other provisions of the Covenant, read as a whole (in this case, particularly in light of Articles 2, 3, 12, 17, 23 and 26) and found that these restrictions could not be justified reasonably or objectively, or be seen as being directed towards ensuring the survival and continued development of the group as a whole.

An example where a restriction on an individual may be found to be reasonable and objectively justifiable under Article 27 has been provided by the Race Discrimination Commissioner in the 1995 Alcohol Report. In this, the Commissioner argued that restrictions on the availability of alcohol to Aboriginal communities (which have been consented to by the Indigenous community as a whole) may constitute a legitimate restriction on the rights of an individual within that community.

The commentaries of the international treaty committees, particularly the Human Rights Committee, demonstrate that human rights standards are capable of being applied in a manner that appropriately balances the rights of individuals within Aboriginal communities - such as women and children - with those of the community as a whole.

Mainstream law needs to consider apparent conflicts between Aboriginal Customary Law and women's individual rights on a case by case basis. It is also important to recognise that custom and law can adapt to general social change, thus allowing resolution of apparent conflict. The potential for conflict should not be used by government as an excuse to avoid the recognition of Aboriginal Customary Law or by Aboriginal communities to condone breaches of human rights.

Recent developments in Indigenous community justice mechanisms

The current criminal justice system has a deleterious effect on Indigenous communities through over-representation of Indigenous people in custody, in large part due to historically derived disadvantage and ongoing systemic discrimination. Processes of separation through the criminal justice, juvenile justice and care and protection systems, combined with dysfunctional behaviour such as violence and abuse in communities are indicative of the inequality and extreme marginalisation of Indigenous people in Australian society.

This is combined with the lack of attention the justice system gives to the high rate of Indigenous victimisation, particularly through violence and abuse in communities. A study in New South Wales in 2001 found that Aboriginal people, particularly Aboriginal women, are significantly over-represented among victims of crime. The study also found that victimisation in violent crimes is also predominately the result of offending by other Aboriginal people. [11] This identifies the challenge to find solutions for Indigenous people being victims of crime, within the context of addressing the over-representation of Indigenous people in criminal justice processes.

Reform to criminal justice processes, including through community justice initiatives, must be responsive to these factors. Improved community justice mechanisms have the potential to make a significant contribution to addressing the inequality and disadvantage experienced by Indigenous people and to do so in a way that is culturally appropriate and more effective that current processes.

There are numerous new initiatives in Australia developing community based justice mechanisms for dealing with juvenile and adult offending by Indigenous people. Some examples follow. [12]

  • Community Justice Groups in Queensland

The Community Justice Group project was started in Kowanyama, Hopevale and Palm Island in 1993 as a pilot project of the Queensland Corrective Services Commission. The Community Justice Group model aims to provide Aboriginal people with a mechanism for dealing with problems of justice and social control which is consistent with Aboriginal Law and cultural practices as well as utilising aspects of the Anglo-Australian legal system. The justice groups have no statutory authority. The source of authority for the group is based on the collective and personal authority of group members deriving from the place of individuals within kinship systems and the personal respect they are accorded by others. Ultimately the group's authority lies in Aboriginal Law and cultural practices.

The Community Justice Groups use traditional structures and cultural principles to develop and apply their own system of justice and social control. They seek to restore social order by curbing anti-social behaviour and by creating a more positive and supportive environment. Group actions that they handle within the existing legal framework include family-related dispute settlement, crime prevention and community development projects, co-ordination with government and community agencies and providing information and advice to the judiciary, Community Corrections Boards and other government decision making bodies.

Perceived positive outcomes for the model include: decline in crime rate and level of violence; an effective community corrections program at Palm Island that has kept people from appearing before court and from possible incarceration; dramatic decrease in juvenile crime at Kowanyama; changes in social patterns; more effective government service delivery, leading to savings in time and money for government and community agencies, courts, law enforcement agencies and correctional centres.

Perceived negative outcomes for the model include: harsh punishments; potential drain on the community's resources; acting without statutory authority; and a lack of indemnity for justice group members.

The Community Justice Panel (CJP) now works with clan groups on Cape York. The CJP model is an evolutionary process, with options at each stage to be trialled before the justice groups go on to the next stage.

The CJP model is supplemented by monthly programs run by the Department of Corrections and the Department of Family and Community Services in substance abuse and anger management. There are also women's shelters in all communities. Greater support is needed however for people on the alcohol management program in terms of counselling and support. Without better infrastructure, such programs will fail over the long-term.

  • The Kurduju Committee Law and Justice Strategy

The Aboriginal Law and Justice Strategy of the Northern Territory seeks to provide a whole-of-community and whole-of-government approach to addressing community justice issues within a law and justice planning process. It was originally implemented at Ali-Curung in 1996 and in Lajamanu in 1999. Both these communities now have their own law and justice plans and are engaged in peer modelilng with Yuendumu community.

In each community a law and justice committee has been established. These committees have a wide range of responsibilities and comprise key community representatives from the Tribal Council, Community Elders, Safe House Committee, women's group, traditional owners, outstation representatives and other community organisations.

Representatives from the Ali-Curung, Lajamanu and Yuendumu communities also sit on the Kurduju Committee, which provides an opportunity for information-sharing and peer modelling, and also to address a perceived deficit in policy and program knowledge, and expertise in regard to remote communities.

The aim of the law and justice plans was 'to facilitate the empowerment of the local community to assume a greater role in law and justice, and to address law and justice concerns through local dispute resolution where practical.' There was a perceived need for low-level intervention by Aboriginal communities in early crime prevention and more productive participation in the justice system.

At Ali-Curung, Lajamanu and Yuendumu, individuals and community organisations had largely lost their capacity to resolve their own law and justice issues through the introduction and consequential reliance on external dispute resolution. Subsequently, the Law and Justice Strategy sought to incorporate Aboriginal dispute resolution principles into community law and justice processes. This was not a straightforward revival of customary law but an innovative adaptation of traditional decision making in a contemporary situation through the merging of mainstream community based dispute resolution with mainstream law and justice. The process is negotiated and agreed to between community organisations and government agencies.

The Ali-Curung and Lajamanu law and justice committees are involved in diversionary programs, pre-court conferencing, victim offender conferencing, community service orders, and the operation of night patrols and safe houses. Ali-Curung, Lajamanu and Yuendumu have adopted an approach to family violence that involves local dispute resolution and healing methodology.

As in the case of the community justice panels in Queensland, the experience of the Law and Justice Strategy to date indicates that any initiatives seeking to formalise an interface between aspects of customary law and the western legal system should be organic, evolutionary and holistic. In order to be effective, any community justice initiatives will also involve a considerable investment in community consultation, participation and education: the emphasis should be on devolving power to the communities. A one-size-fits-all approach or the top-down application of a preconceived model is unlikely to yield long-term results and could even be counterproductive in resolving law and justice issues.

  • South Australia: Ngunga court

South Australia's Ngunga court was commenced in Port Adelaide in June 1999. In collaboration with the Aboriginal community, South Australian Magistrate Christopher Vass developed the idea of the court which incorporates the Aboriginal traditional customary law approach to the sentencing of Aboriginal offenders within the framework of existing legislation. Aboriginal Elders sit with the magistrate to advice on sentencing options which may include community sanctions and punishment. The Elder and magistrate sit at eye level to the offender and not elevated by the bench. Members of the offender's family, as well as the victim and the victim's family, and other interested community members have the chance to speak during the sentencing hearing. An Aboriginal Justice Officer is present to guide the offender through the court process.

Aboriginal Justice Officers also go into Aboriginal communities to speak on the criminal justice system. The Ngunga court is available to any Aboriginal offender who pleads guilty to an offence, and has not committed a violence or sexual offence.

Prior to the commencement of the Ngunga court in South Australia the court attendance rate for Aboriginal offenders was well below 50 per cent. The Ngunga court has an attendance rate ay over 80 per cent. There are now four Ngunga courts operating in South Australia. A Murri court now operates in Brisbane (capital of Queensland) on the same model as the Ngunga court.

The South Australian government recently opened a juvenile Ngunga court in Port Lincoln.

  • New South Wales: Circle sentencing

Circle sentencing was commenced in Nowra, New South Wales in February 2002.

The circle consists of the magistrate, offender, victim, family members and Aboriginal elders. The participants sit in a circle, it is not usually held in a formal court setting. The circle attempts to achieve consensus on the sentence and the circle reconvenes, a few months later, to review the progress of the offender or status of the sentence. A support group for the offender is established at the sentencing circle, who report to the Community Justice Group, on the progress of the offender. The Community Justice Group, in turn, reports the progress to the magistrate.

A review of the first twelve month trial has recently been released. The review found that the trial was a success as it had:

  • reduced the barriers that currently exist between the Courts and Aboriginal peoples;
  • led to improvements in the level of support for Aboriginal offenders;
  • incorporated support for victims and promoted healing and reconciliation;
  • increased the confidence and promoted the empowerment of Aboriginal persons in the community;
  • introduced more meaningful and relevant sentencing options for Aboriginal offenders, with the help of respected community members; and
  • helped to break the cycle of recidivism.

The Review noted that circle sentencing was appropriate to be trialled in other communities, but would have to be tailored to the cultures and customs of different Aboriginal groups in order to succeed, and that it required the commitment of significant resources as processing sentences through this process is more time consuming than a usual court setting.

Further trials have now commenced in other regions of New South Wales (Brewarrina and Walgett).

  • Victoria: Koori Court

In March 2003 Victoria established a Koori Court. The court, a two-year pilot project, will operate from the Broadmeadows Magistrates Court and the Shepparton Magistrates Court. Like other similar courts operating in Australia, it also aims to provide an informal approach to the sentencing procedure. It provides for greater participation by the Aboriginal community. It aims to reduce perceptions of cultural alienation and tailors sentencing orders to the cultural needs of Koori offenders.

Aboriginal defendants who plead guilty to an offence (with the exception of sexual or family violence offences) can elect to have the matter heard in the Koori Court. Included in the sentencing procedure are offender's legal representative, the offender and any family members or other people, including the victim, associated with the offence. The court provides a forum where Indigenous elders as well as an Aboriginal Justice worker have input in the sentencing process by advising the magistrate on matters of cultural significance. The magistrate will confer with a community elder and discuss the most appropriate sentence or conditions to be placed on the sentence. The Magistrate and the community elder may also confer with the Aboriginal Justice Worker in deliberation of the sentence.

1. Australian Law Reform Commission, The Recognition of Aboriginal Customary Law, ALRC 31, ALRC Sydney 1986, www.alrc.gov.au.

2. Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the Northern Territory law Reform Committee inquiry into the recognition of Aboriginal customary law, HREOC Sydney 2003, p1, www.humanrights.gov.au/social_justice/submissions.html#nt_law.

3. The submission to the NT inquiry discusses Australian jurisprudence which does take a more limited approach to the interpretation of the meaning of equality and non-discrimination.

4. See further: Eide, A. and Daes, E., Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples, UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000

5. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, HREOC Sydney 2002, Chapter 2.

6. Race Discrimination Commissioner, Alcohol Report, Canberra, HREOC, 1995, p27.

7. Human Rights Committee, General Comment 23 – Article 27, in Compilation of General Comments and General Recommendations adopted by human rights treaty bodies, UN Doc: HRI/GEN/1/Rev.5, 26 April 2001, paras 6.2, 7.

8. Human Rights Committee, General Comment 28 – Article 3 (equality of rights between men and women), in Compilation of General Comments and General Recommendations adopted by human rights treaty bodies, UN Doc: HRI/GEN/1/Rev.5, 26 April 2001, paras 5, 32..

9. Human Rights Committee, Concluding observations: Japan, UN Doc: CCPR/C/79/Add.102, 1998, para 30.

10. Committee on the Elimination of Discrimination Against Women, General Recommendation 19, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev5 2001, paras 1,7.

11. Fitzgerald, J and Weatherburn, D, ‘Aboriginal Victims and Offenders: The Picture from Police Records’, NSW Bureau of Crime Statistics and Research, Sydney 2001, p1, www.lawlink.nsw.gov.au/bocsar1.nsf/pages/pub_atoc#aboriginality.

12. These issues are discussed more fully in: Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the Northern Territory Law Reform Committee inquiry into Aboriginal Customary Law in the Northern Territory, 14 May 2003, www.humanrights.gov.au/social_justice/customary_law/nt_lawreform.html.

13. Lawrie,R, Thomas, B, Potas, I, Smart, J and Brignell, G, Circle Sentencing in NSW a Review & Evaluation, AJAC and NSW Judicial Commission, www.lawlink..nsw.gov.au/ajac.nsf/pages/reports.

Last updated 11 November 2003.