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Home > Aboriginal Studies > Social Justice & Human Rights > Comparative Investigation > Social Justice & Human Rights Issues: A Comparative Investigation

 

Social Justice & Human Rights Issues: A Comparative Investigation

	Criminal Justice Overview Resources Question examples & marking criteria   "In the last year alone more than 8% of the Aboriginal population of New South Wales appeared in a criminal court, 4 times more often than the rest of the community. Almost 16% of all Aboriginal people going to court were sent to prison compared with just over 6% of the rest of the population. These figures represent a real tragedy occurring in our state, the plight of a colonised people in a colonial system. This is further evidenced by the fact that Aboriginal people are being sentenced at the harsher end of the penalty scale. This has to change". Winsome Matthews Chairperson, Aboriginal Justice Advisory Committee (AJAC) Speech at the launch of AJAC 2 February 1999   Overview Students will need to study their local community, another Indigenous community within Australia and an overseas indigenous community. Students need to understand the ways in which Aboriginal peoples maintain law and order. It is important to realise that this refers to the current situation. Examples from each of the three communities studied are needed. The impact of invasion and colonisation and subsequent events, while the same in general terms throughout Indigenous communities, differs in its specifics. The differences occur because of geographical and historical factors, particularly when the group was invaded and colonised. Figures for incarceration show similarities (i.e. Indigenous people are overrepresented in the criminal justice system). Students must know the specifics for their three communities, including individual circumstances where appropriate. Students need a thorough knowledge of the criminal justice system, focusing on the power relations between Aboriginal people, police and the judicial system. Students need to understand the concept "power relations". They also need to understand the roles of police and the judicial system. Generalisations are easy to make but students need to be specific to their communities. Care needs to be taken in this section. Gather information from the Police Liaison Officer, use statistics but be careful not to identify individual cases. Use positive examples, eg. the "Second Chance" Centre at Brewarrina, though keeping the examples of injustice. This can be a very sensitive area. The statistics about Aboriginal people in, and affected by the criminal justice system, particularly arrest, incarceration and sentencing rates need to be examined. It is important to have accurate data, and information that is as current as is available for each community. For the overseas Indigenous community it is important that the statistics relate directly to that the community, not the overall community in that country. For example, collect specific statistics for Maori people in Christchurch, New Zealand, not statistics that apply to Maori people across New Zealand. It is important to know the names of particular government programs and strategies to address Aboriginal criminal justice issues, particularly those which are culturally appropriate. It is particularly important know how these programs and strategies are being implemented in their local and other Australian community. For example, the "Second Chance" Centre at Brewarrina. Examples need to be found of the implementation of similar government programs and strategies for the overseas indigenous community in the area of criminal justice. A number of programs are designed and run by local Aboriginal communities to their specific needs, taking into account climate and lifestyle factors. If these exist in your community or in your other Australian study, make sure you know the details of these programs. Lifestyle factors play a role in Aboriginal peoples' involvement in the criminal justice system. Lifestyles in country towns differ to the city for example. Students should examine statistics for a particular community and draw conclusions to show the extent that lifestyle is a contributing factor. It is often the difference between Aboriginal lifestyle and non-Aboriginal lifestyle that makes lifestyle a factor in these statistics. The impact of unemployment and the levels of education need to be considered. All three communities need to be examined. Students should have an understanding of the importance of regaining land in addressing the impact of the criminal justice system on Aboriginal peoples. This importance depends very much on where the communities studied are living, and how the land regained will be used. Students will need to know specific examples of the impact of the regaining of land for each of the three communities studied. Even if the regaining of land has not been completed, students need to know of plans for the future. Students need to know what social and political changes are necessary to address the over-representation of Aboriginal peoples in the criminal and social system and the changes necessary within law enforcement and judicial agencies to improve attitudes toward Aboriginal people. Students need to understand what governments are doing, what Aboriginal and Indigenous Communities are doing and what both groups are planning for the future. Government changes may be state wide, but students should be able to find local applications Again, students need to know what is being done to change attitudes in law enforcement and judicial agencies. Governments will have put in place particular policies to address these issues. They need to know what is happening on a local level. This applies to all three communities. Students should compare (show similarities and differences) the three communities studied. The most effective way to do this is in a summarising table. As all the information has already been covered students can write generalisations across the page where necessary and give specific examples under appropriate columns.     Three comparative communities Local Aboriginal Community National Australian Indigenous Community International Indigenous Community Example Casino - Bundjalung Dubbo - Wiradjuri Cree Ways of  maintaining law and order       Invasion and colonisation       Relations of Aboriginal people with law enforcement & judicial system       Statistics       Criminal justice  programs/ strategies       Impact of  lifestyles       Importance of regaining land         Resources Aboriginal & Torres Strait Islander Social Justice Annual Report Human Rights and Equal Opportunity Commission, Sydney, NSW, 1999. Beresford, Q. & Omaji, P. Rites of passage : Aboriginal youth, crime and justice Fremantle Arts Centre Press, South Fremantle, WA, 1996. Bird, C. (ed) The stolen children: their stories: including extracts from the Report of the National Inquiry into the separation of Aboriginal and Torres Strait Islander Children from their families Random House Australia, Milsons Point, NSW, 1998. Healey, J. (ed) Aboriginal health and welfare Spinney Press, Balmain, NSW, 2000. Indigenous deaths in custody 1989 -- 1996 / a report prepared by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner for the Aboriginal and Torres Strait Islander CommissionAboriginal and Torres Strait Islander Commission, Canberra, 1996. Pryor, Boori (Monty) Maybe tomorrow  Penguin, Ringwood, Vic., 1998. Who killed Malcolm Smith? [videorecording] Film Australia, Lindfield, NSW, c1992.   Related links General Australian Institute of Aboriginal & Torres Strait Islander Studies Australian Bureau of Statistics  Customary law Aboriginal Customary Law (Recognition of Aboriginal Customary Law)  ALRC Report  Aboriginal Customary Law, by Rick Sarre   Community justice The Kowanyama Justice Group: A Study of the Achievements and Constraints on Local Justice  Administration in a Remote Aboriginal Community by Dr Paul Chantrill, University of New England, Australian Institute of Criminology   Self determination Implementing Self-Government- An Examination of the Aboriginal Communities Act (Western Australia) by T. Kamien, E-Law Murdoch University An Opportunity lost for Aboriginal self-determination: Australia's compliance with ILO 169 Alison Humphry E-Law, Murdoch University Aboriginal Rights and Interpretative Responsibility by Larry Innes, E-Law, Murdoch University   Culture & copyright Indigenous Peoples and Intellectual Property Rights by Michael Davis Australian Parliamentary Library Milpurrurru & Ors v Indofurn Pty Ltd & Ors - Protecting Expressions of Aboriginal Folklore Under Copyright Law by Michael Blakeney, E-Law, Murdoch University   Custody Reports of the Royal Commission Into Aboriginal Deaths in Custody select this link for the Royal Commission's papers Suicide in Prison 1980 to 1998: National Overview Report by Vickie Dalton, Australian Institute of Criminology Aboriginal Deaths in Prison 1980 to 1998: National Overview by Vickie Dalton, Robyn Edwards Australian Institute of Criminology   Women's issues Summary of Recommendations Relating to Aboriginal Women and the Legal System A Report on Aboriginal Women and Bias in the Western Australian Justice System Catherine J. Iorns, E-Law, Murdoch University  Australian Law Reform Commission, Equality Before the Law:Report No. 69 Part 1 Specialist Women's Legal Services for Aboriginal & Torres Strait Islander Women   Courts The Fernando Principles, principles for sentencing Aboriginal offenders by the NSW Supreme Court   Australian court & tribunal decisions Native Title Criminal Issues Cultural Issues Family Law   Juvenile justice Detaining Aboriginal Juveniles as a Last Resort, Variations on a Theme by Lyn Atkinson, Australian Institute of Criminology   Stolen Generations (also see stolen generations cases in the courts & tribunal section) Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families A Lawyer's Perspective on the use of Fiduciary Duty with regard to the Stolen Children by Melissa Abrahams,  UNSW Law Journal Kruger and Bray and the Common Law by Tony Buti , UNSW Law Journal Placement of Indigenous Children: Changing the Law by Richard Chisholm UNSW Law Journal Compensation for the Stolen Children: Political Judgments and Community Values by Regina Graycar , UNSW Law Journal Stolen Generqations: The Kruger Action by Lachlan Kennedy and Deborah Nance, UNSW Law Journal The Stolen Generations in the Aftermath of Kruger and Bray Michael D Schaeffer, UNSW Law Journal Authors of our own History Nigel D'Souza,  UNSW Law Journal Kruger v Commonwealth: Does Genocide Require Malice? Matthew Storey,  UNSW Law Journal Assimilation, Gender and Land in the Northern Territory after Kruger Barbara Cummings,  UNSW Law Journal   Question examples & marking criteria Outcomes assessed: H1.2, H2.3, H3.1, H3.2, H3.3, H4.5 In the answers to the sample questions the criteria by which the questions will be marked have been provided rather than a definitive written answer. There is no one correct answer!!   Newspaper article "It used to be the Elders who would put these young blokes back on track. They'd send them to some remote part of the community and they'd have to fend for themselves in every way for a few weeks. But the Elders don’t get that opportunity any more and the kids are sent to jail." Rodney Dillion, ATSIC Commissioner Tasmania Koori Mail March 22, 2000 Using the source above and your own knowledge, answer the following: A. Why would it be beneficial to have the Elders involved in dealing with justice for "young blokes" today?(4 marks) Criteria Marks • Gives multiple reasons and understands the importance of Elders and their role in assisting young offenders. 4 • Gives more than one reason and a brief explanation of the role of Elders. 2-3 • Gives one reason. 1 B. Explain what is customary law?(4 marks) Criteria Marks • Provides a detailed explanation of customary law. • Response displays own thorough knowledge and gives examples. 4 • Provides a general explanation of customary law. • Response displays some examples. 2-3 • Response mentioned one point. 1 C. Using your National Indigenous Australian and Local Aboriginal Community Case Studies discuss how culturally appropriate programs and strategies could address Aboriginal criminal justice issues. (12 marks) Criteria Marks • Provides a comprehensive discussion of two clearly defined communities.   • Provides a details analysis for each community of culturally appropriate programs and strategies.   • Includes specific examples.   • Must refer to: Royal Commission into Deaths in Custody, Mandatory Sentencing.   • Provides a broad understanding of criminal justice issues. 10-12   • Clearly identifies two communities and presents a balanced discussion.   • Provides a sound discussion of criminal justice issues.   • Includes specific examples of programmes and strategies that are culturally appropriate. 7-9   • Identifies two communities.   • Describes some knowledge and understanding of culturally appropriate programmes and strategies.   • Includes some discussion of current criminal justice issues. 4-6   • Identifies one community.   • Provides some relevant information on culturally appropriate programmes and strategies.   • Refer to criminal justice issues. 1-3