Comparing a Aboriginal and Australian Justice Systems

Various aspects of law reform prove to be ineffective whilst certain aspects prove to be effective. Law reform in relation to Bail and Native title has proven to be somewhat effective in engaging in the protection of individual rights and meeting society’s needs, amending and creating new legislation to maintain with new concepts of justice and changing social values. This is evident in the Bail Act 2013 NSW, the Bail Act 2014 amendment NSW, The Native Title Act 1993, The Aboriginal Land Rights Act 1976. Showing evidence of effectiveness through their enforceability and to some degree, their responsiveness.

Provision [SCRGSP], 2005; Jeffries and Bond, 2012). It is also widely discussed that there is an overrepresentation of Indigenous Australians in the criminal justice system itself (Jeffries and Bond, 2009), representing up to one quarter of prisoners in Australia (Makkai and Payne, 2003; Payne, 2005). This essay will address the current issues that Indigenous Australians face within the criminal justice system, particularly, with courts. The aim of this essay besides addressing these issues will also be to provide suggestions or alternatives that may help resolve the presented issues and improve the experience for Indigenous Australians in court.

One of the three main theories that work as basis of the organisation of the United Kingdom is the Doctrine of separation of powers, such as Parliament sovereignty and the rule of law. This essay is going to critically discuss whether the United Kingdom needs and have the clear separation of powers.

The rate of imprisonment of Aboriginal and Torres Strait Islander Australians has dramatically increased since 1992. Statistics went from “1 in 7 prisoners in 1992 to 1 in 4 in 2012 and to almost 1 in 3 in 2014.” There have been an abundance of proposals, plans and programs established, some of which have failed and some which are still in development, to try decrease the high numbers. The high incarceration rate of Indigenous people in Australia is considered to be a global issue that must be addressed.

This essay looks at Indigenous Australians in relation to the institution of ‘Criminal Law’. In this context, criminal law refers to legal processes such as police questioning, investigation and detainment as well as arrest, custody and bail. It also encompasses associated court procedures up to the point of sentencing. The focus will be to first outline the importance of criminal law to Indigenous Australians and then provide a critical analysis of the unique experiences and barriers that this group encounter in accessing criminal law in a positive way. Following this analysis, the development of possible ways to improve Indigenous access to criminal law will be discussed. Particular attention will be given to the way in which Indigenous Australians are affected by the transition of our modern justice system toward broader social justice concepts that incorporate risk management of potential criminal behaviour. From this discussion a conclusion will be drawn as to whether or not Indigenous Australians enjoy equality of criminal law and whether the structural elements of the law itself perpetuate Indigenous injustice and disadvantage.

A wide-ranging number of concerns were raised relating to the way the justice system deals with violence against Aboriginal women and girls. This included concerns with the police system, the judicial system, and the correctional system.

The Australian justice system implements the adversarial system in which opposing parties present their case before an unbiased decision maker, to ensure procedural fairness and the principles of natural justice are upheld.The system has been structured this way to ensure justice is served for the victim, offender and the broader community. The nature of justice is that it is equal to all, fair from bias and is accessible. In the case on R v Rolfe and R v Weston (2017) the two offenders; Timothy Rolfe and John Weston, members of the Rebels Outlaw Motorcycle Club were sentenced at the NSW Supreme Court on a joint criminal enterprise for the murder of 29-year-old Laurence Starling. The killing was motivated by revenge for an unpaid extortion debt of $200,000 between the deceased’s business partner Mr Fields and a high-ranking member of the ‘’Rebels’’ who sent his subordinates to seize Mr Field’s assets as compensation. The complex circumstances of the crime were problematic for the justice system because particular methods had to be implemented in the process of achieving justice however the justice system was relatively effective in reaching a just outcome for majority of the stakeholders due to its resource efficiency, responsiveness, accessibility, standards of fairness, protection of individual rights and meeting society’s needs.

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) in 1991 provided documentation on the death of indigenous Australians in prison or police custody. In doing so the report highlighted the substantial over representation of Aboriginal and Torres Strait Islander people in the Criminal Justice system and provided detailed analysis of underlying factors. The reports findings were believed to be the foundation of change. However, regardless of a range of policy changes and crime prevention programs in repose to the report, over representation in the criminal justice system remains. The issue is one of the most significant social justice and public policy issue in the contemporary Australian criminal justice system. The RCIADIC made 339 recommendations, most of which have been implemented into the criminal justice system over the past two decades. Never the less the systematic over representation remains prevalent. The purpose of this essay is to understand over representation as it exists in the contemporary criminal justice system. Particular emphasise will be placed on the levels of women and youths in the criminal justice system, their contact with the system and empirically based risk factors pertaining to over representation. An evaluation of alternative programs in the pre and post sentencing stage and the impact such programs would have on the over representation will be conducted.

Assess the impact of the Australian Aboriginal League in improving the rights and freedoms of Aboriginals in Australia

The Aboriginal concepts of justice compared to Western concepts of justice are quite different. Aboriginal peoples are therefore required to fit into a system that does not recognize their values. This difference in beliefs and values in relation to the criminal justice system represents a clash between the two cultures, which results in Aboriginal peoples being incarcerated at higher rates than non-Aboriginal

Aboriginal women more often prosecuted of both sole and dual arrested women. They concluded that dual arresting women is a cause for concern because only 19% of the cases are prosecuted. Leniency from the court is concluded to be greater for women than men because only 30% of female intimate partner violence cases go to trial while 53% of male intimate partner violence are prosecuted. The first limitation given is that the cases only come from one jurisdiction, so it cannot be generalized to other areas. The next limitation is that only female cases were examined and same-sex intimate partner violence cases were excluded. The

In 2001, Professor Chris Cunneen from the Criminology Department in the University of New South Wales authored a book entitled “Conflict, Politics and Crime: Aboriginal Communities and the Police” which mainly focused on the relationship between the Aboriginal people and the police. In chapter five of the book, which will be evaluated, he analyses the use of terror such as physical assault, ill treatment and over- policing of the Aboriginal people not just in public places but when in custody as well. It showed the ‘violence of neglect’ (Chris Cunneen 2001, p.106) and the failure to provide proper justice and a certain level of care to the Aboriginal People whether in custody or not (Chris Cunneen, 2001).In 1987, due to the over representation of Aboriginal peoples death in custody, the Royal Commission into Aboriginal Death in Custody (RCIADIC) was established to investigate into it(Larissa Behrendt,2013,p.7). There were some recommendations brought forward to make improvement to policing methods and the criminal justice system. However, there seems to be a continuing reality of injustice even in 2001 with high incarceration numbers in custody. “The law should be a shield for the weak and the powerless, not a club for the powerful “(Governor Roy Barnes, 2004 Equal Justice

Incorporating just one culture’s ideology while ignoring another also challenges Australia’s commitment to cultural diversity (Calma, 2007). The fact is every Australian has different cultural views and practices a chosen cultures values in their day to day life which can at some level can be considered when an individual encounters the Australian criminal justice system (Calma, 2007). Moreover, some individuals are concerned about incorporating indigenous customary law is that recognition may lead Indigenous people to lose control over their laws leading to further alienation. Concerns of having to expose secret pieces of law to outsiders who may aim to change them (ALRC, 1986; Law Reform Commission, 2006). Recognition of Indigenous law today

Aboriginal laws differ very differently from traditional Australian legal system; the aboriginal laws are not passed through legal systems from documents such as constitutions. Judges and parliament’s decisions make these laws that then allow for laws to be made. However, aboriginal customary laws are made by traditions and are not in writing or des not proceed from past legal decisions and arguments. Their laws are created differently compared and are more difficult to comprehend. Their laws are passed through generation to generation by speaking, and interaction. “Aboriginal law stems from an oral tradition-the substance of which is passed from generation to generation” (Law Reform Commission of Australia, 2005, p.50). This statement helps

One of the main differences between the civil law and common law systems is the binding force of precedents. While the courts in the civil law system have as their main task deciding particular cases by applying and interpreting legal norms, in the common law the courts are supposed not only to decide disputes between particular parties but also to provide guidance as to how similar disputes should be settled in the future.