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
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
- the recognition
of Indigenous customary law; and
- Indigenous community
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.  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
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.
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.
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.
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.
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
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 ,
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.
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.
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…
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.
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
rights of peoples [to self-determination] as provided for in common
Article 1 to the two International Covenants of 1966. 
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. 
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. 
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. 
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. 
The Committee has
expressed concern about domestic violence, including forced sexual intercourse,
within the context of marriage. 
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
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
- The right not
to be subject to torture or to cruel, inhuman or degrading treatment
- The right to
liberty and security of person;
- The right to
equal protection under the law; and
- The right to equality
in the family. 
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
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
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.
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
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. 
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
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. 
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.
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.
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 counseling and support. Without better infrastructure,
such programs will fail over the long-term.
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 modeling
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
from the Ali-Curung, Lajamanu and Yuendumu communities also sit on the
Kurduju Committee, which provides an opportunity for information-sharing
and peer modeling, 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
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.
Australia: Ngunga court
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.
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
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.
South Wales: 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;
support for victims and promoted healing and reconciliation;
- increased the
confidence and promoted the empowerment of Aboriginal persons in the
- 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).
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.
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.
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-discirmination.
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,
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
Last updated 11 November 2003.