That Indigenous communities should be allowed to administer traditional justice
A Grade – Round Two
Indigenous people are vastly overrepresented in our criminal justice system. Statistics released in 2012 revealed that despite comprising only 2.5% of the Australian population, Aboriginal and Torres Strait Islanders constitute just over a quarter (27% or 7,982) of the total prison population. Furthermore, Aboriginal and Torres Strait Islander youth account for approximately 50% of incarcerated young people.
Australia’s Indigenous population has a history and culture that stretches back up to 40,000 years – making it one of the oldest on earth. Part of that history and culture involves an approach to ‘law and order’ or justice issues that is different from the approach which exists across non-Indigenous Australia today. For some Indigenous people today, there remains a desire to apply these approaches to crime and justice – even in cases where they are different or contradictory to ‘white justice’ approaches.
Indigenous justice, also called ‘traditional’ or ‘customary’ justice, can mean a range of different things depending on the Indigenous people in question. In some cases it includes forms of community trial and punishment – such as public shaming, exclusion from the community or ‘circle sentencing’. Circle sentencing is a type of alternative sentencing which seeks to avoid jail time for criminals who have been found guilty and instead brings them together with community members, including Elders, trying to find an alternative form of punishment that properly deals with the crime. In other cases it can include the use of physical punishment – even in some cases involving duelling or even causing physical pain to people found guilty of crimes, though these approaches are considered rare.
Supporters of Indigenous justice argue that these traditional approaches are more effective because they are more relevant and accepted by their communities than ‘white justice’. Advocates also discuss the effects of prison on Indigenous people. Further, some might argue that because Indigenous people are original inhabitants of Australia, they have a moral claim to governing their own conduct that must be acknowledged by the law.
Opponents of Indigenous justice believe that the law should apply equally to all Australians, regardless of race, and might argue that the types of penalties applied are unfair – either too extreme if they inflict physical pain, or too lenient if they avoid jail time.
Consider:
· What is the current status of Indigenous people in Australia’s legal system? Why do you think this is the case?
· Are current approaches to crime and punishment working for Indigenous people? Are they fair? Think about whether time in prison is an equal punishment for Indigenous and non-Indigenous people alike;
· What are different types of Indigenous justice? Which parts of the criminal justice system do they affect and how? Think about:
o What is and isn’t illegal;
o Policing and enforcement of laws;
o Trials to determine guilt;
o Punishment.
· What were Koori courts in Victoria? How did they work?
· How might a system of Indigenous justice respond to particularly serious crimes? What about where a victim of crime is non-Indigenous?
· Are Indigenous justice approaches to punishment incompatible with ‘white justice’?
· Is it important that the law apply equally to all people? Why?
· How might non-Indigenous Australians perceive Indigenous justice? Would it change their perceptions of Indigenous people? Does that matter?
Links:
http://www.balancedjustice.org/indigenous-overrepresentation-in-prisons.html
Balanced Justice – Indigenous overrepresentation in prisons.
http://www.creativespirits.info/aboriginalculture/law/circle-sentencing
Creative spirits – Circle sentencing
http://www.alrc.gov.au/publications/21.%20Aboriginal%20Customary%20Laws%20and%20Sentencing/aboriginal-customary-laws-and-notion-%E2%80%98puni
Australian Law Reform Commission – Aboriginal Customary Laws and Sentencing
http://www.abc.net.au/news/2013-10-21/bellear-indigenous-sovereignty/5032294
ABC - The case for Indigenous self-determination
http://www.heraldsun.com.au/news/opinion/koori-courts-will-divide-not-bind-our-society/story-fni0ffsx-1226993940397
Herald Sun - Koori courts will divide, not bind our society