Mandatory sentencing

To create a balanced picture of indigenous rates of incarceration, we need to allow for Mandatory Sentencing – the three strikes laws – passed by the Northern Territory and then later in Western Australia.

Before the Northern Territory law was repealed, there was a public outcry when Jamie Wurramurra went to prison for stealing biscuits and cordial.

That indigenous incarceration rates are highest in the states where the Aboriginal population is highest should be no surprise, nor should it be a surprise that where a three strikes law is in force, incarceration rates will naturally go through the roof.

Law and Order is not just the name of a successful TV series. It’s one sure vote-catching issue just about anywhere in the western world. As a nation, we need to decide whether we want to trust our judicial system or not, because a three strikes law says we do not.

Are indigenous people imprisoned in disproportionate numbers because they deserve it, or  because they are unfairly targeted? One obstacle to answering this question is the political correctness that prevents anyone from recording or reporting crimes based on the race or ethnicity of the offender, the race or ethnicity of the victim, and the number of repeat offences by individuals in each case.

Superficially, one might assume that the number in prison matches the number of criminals, but it is impossible to penetrate the fog without more details. Keeping these details hidden away simply makes it easier for the ‘get tough’ brigade to make accusations without having to offer proof, and it makes it harder for those who are slandered to defend themselves.

One very open secret I cannot therefore prove is that Aboriginals harm each other more than they harm anyone else. That they harm each other so often is a tragedy, but it certainly doesn’t make Aboriginals a threat to whitefellas.

Sentencing and Circle Courts

Sentencing in Australia is lenient compared to some other countries, with the emphasis often placed on the possibility of rehabilitation, rather than just punishment for the crime, or protecting the public from the criminal.

Since the late 1990s, changes have been made in mainland states [including the Northern Territory] in the way the law deals with many Aboriginals charged with breaking a law. The aims of these changes are a reduction in Aboriginal distrust of the law, a reduction in the disproportionate numbers of indigenous peoples finding themselves in custody, and providing outcomes which are more likely to prevent re-offending,

In urban areas there are special courts, the first of these being the Nunga Courts in South Australia, to which more courts have since been added. There are Koori Courts in Victoria, Circle Courts in New South Wales, and a Murri Court in Brisbane. There is a further court in Rockhampton  treating Aboriginal people, Torres Strait Islanders and South Sea Islanders all separately by racial or ethnic identity. A Circle Court has also been established in the Pilbara region of Western Australia.

In addition to these new urban courts, new approaches are used when circuit courts travel to remote areas.

Each state has its own rules regarding, amongst other things, what crimes these special courts may deal with and how the local Aboriginal community is involved. The Queensland sentencing act requires Magistrates and Judges to take into account the views of community members when passing sentences.

In some areas of the law, such as sexual offences, indigenous people may prefer not to participate in sentencing.

In the Northern Territory several laws require Judges to take account of payback punishments when sentencing. Australian law does not authorise or encourage traditional payback, but if someone is likely to be speared then they certainly don’t deserve the same whitefella punishment a whitefella would get for the same crime. For this reason, the judiciary is required to seek advice from the local community.

In some courts, the local community can help clarify exactly what happened as well as help decide on an appropriate punishment, and monitor the offender’s progress in terms of rehabilitation.

Side effects of this approach might be reinforcing the authority of elders where this seems to be breaking down, and strengthening a sense of community.

Help

Because so many Aboriginals live in remote areas, are isolated by language and cultural barriers, and are more likely to rely on legal aid, they are further disadvantaged when a solicitor is appointed to help.

Contact with clients will be minimal because of travel and distances involved, and Aboriginals are more likely to meet with a different solicitor at each stage of the legal process; when they are charged and applying for bail, at a hearing, and at a sentencing [assuming they do not apply for appeal].

Interpreters

There is a large pool of accredited interpreters in Australia for the most common European or Asian languages, but there are not even courses available for many Aboriginal languages. 

To be effective, an interpreter needs to understand a language, its associated culture and shades of meaning, as well as being alert to the possibility of an individual misunderstanding. An interpreter must not only understand legal concepts and be familiar with court procedures, he/she must also understand medical and other matters which might be raised in court.

Because some indigenous languages might only be the first language of 30 or 40 people, it would be great to have members of that language group as interpreters, not just for the benefit to the community but also to preserve the language. In a court room, however, that person cannot be someone who stands in a taboo relationship to the people involved in the case, though the probability they are also involved in what happened or have a conflict of interest is also rather high.

Other aspects of communication

Traditional concepts – along with whitefella assumptions – befuddle successful communication. Some relate to a difference in the way time and quantities are processed and classified as opposed to the western way of dealing with them. 

Gestures are sometimes used in place of words, and there are some things Aboriginals are traditionally not permitted to speak about.

In a court room, where questioning might go on forever to clarify a single point, someone might use a word which several meanings. The western desert language Ngaanyatjarra, like many others, has had to develop new words to describe new, western concepts. The word town, which has become tawunpa, might mean settlement, city, town or house.

Aboriginals might use words like hit or kill interchangeably.

It’s not hard to see how, in the remote past, on the rare occasions Aboriginals were given a chance to seek justice, justice was not always done. What many whitefellas are simply unaware of is that, even today, there are many Aboriginals for whom whitefella language is still as incomprehensible as the law.

Gratuitous Concurrence

Just one of the barriers to effective communication is a phenomenon known as:

Gratuitous Concurrence

Quite simply, this is a tendency for automatic agreement. It’s not necessarily from fear of authority; often it’s a cultural signal showing a person is ready to engage in a conversation. Two examples might help:

1. An Aboriginal man was in court to testify as a witness. He was not charged with anything, but when he was being sworn in he pleaded guilty.

2. A barrister asked a series of questions to which a witness kept replying yes.

Barrister: Do you understand you don’t have to answer my question?

Witness: Yes

Barrister: Now, do you have to tell me the story?

Witness: Yes

The judge noticed that several Aboriginals sitting in the public area of the court were also all mouthing the word yes and nodding along with the witness.

Aboriginal English

In 1992 Dr Diana Eades’ published a book called Aboriginal English and the Law, and shortly after that the Queensland Attorney-General published a more straightforward guide called Aboriginal English in the Courts. This guide is very easy and very interesting reading.

Eades says Aboriginal English did not develop from pidgin English, but from the way English was Aboriginalised as it was being learnt, in terms of grammar, accent and traditional ways of speaking.

For a very long time, white people might have heard Aboriginals speaking what sounded like English and misinterpreted what was actually a distinct language, differing from English in very systematic ways. For a very long time, Aboriginals have been disadvantaged, legally and in other ways, by this misunderstanding.