NCJ Number
50976
Date Published
1977
Length
19 pages
Annotation
THE AUSTRALIAN CRIMINAL JUSTICE SYSTEM'S PROBLEMS IN DEALING WITH THE ABORIGINAL POPULATION ARE DISCUSSED, WITH REFERENCE TO CONFLICTS BETWEEN WHITE AND ABORIGINAL CUSTOMS AND LAW.
Abstract
THE BASIC ASSUMPTION UNDERLYING THE RELATIONSHIP BETWEEN THE ABORIGINES AND THE AUSTRALIAN LEGAL SYSTEM HAS BEEN THAT ABORIGINES ARE BOUND TO THE SAME EXTENT AS THE GENERAL COMMUNITY BY AUSTRALIAN LAW. THIS ASSUMPTION HAS TENDED TO OVERLOOK THE FACT THAT, IN PRACTICE, TWO DISTINCT LEGAL SYSTEMS HAVE OPERATED WITH RESPECT TO ABORIGINES SINCE THE WHITE SETTLEMENT OF AUSTRALIA. HOWEVER, WHILE THE AUSTRALIAN LEGAL STRUCTURE OFTEN IS ENTIRELY INAPPROPRIATE IN CASES INVOLVING ABORIGINES, TRADITIONAL ABORIGINAL LAW MAY BE LARGELY IRRELEVANT FOR ABORIGINES WHO HAVE CHANGED THEIR TRADITIONAL WAY OF LIFE. TRADITIONAL ABORIGINAL LAW HAS ALTERED LITTLE TO MEET NEW PROBLEMS ASSOCIATED WITH INCREASED CONTACT BETWEEN ABORIGINES AND WHITES. SIMILARLY, THERE HAS BEEN A MARKED ABSENCE OF SPECIAL LEGISLATIVE ACTION ON THE PART OF WHITES FOR THE URBANIZED BLACK POPULATION AND FOR ABORIGINES WHO ARE LESS CONSTRAINED BY TRADITIONAL TRIBAL VALUES. ONLY RELATIVELY RECENTLY HAS SOME ATTENTION BEEN PAID TO IMPOSING PENALTIES IN LIGHT OF CIRCUMSTANCES SURROUNDING AN OFFENSE COMMITTED FOR TRIBAL REASONS. AN EXAMINATION OF THE MANNER IN WHICH THE WHITE SYSTEM OF CRIMINAL JUSTICE HAS OPERATED WITH RESPECT TO BLACKS SUGGESTS POSSIBILITIES FOR OVERCOMING SOME OF THE PROBLEMS STEMMING FROM THE CONFLICTING CULTURES. PROBLEMS OF COMMUNICATION BETWEEN WHITES AND ABORIGINES ARE DISCUSSED, AS IS THE INFLUENCE OF ALCOHOL CONSUMPTION ON CRIME RATES AMONG ABORIGINES. SOME STUDIES ATTRIBUTE THE HIGH RATE OF CONVICTIONS OF ABORIGINES FOR LIQUOR OFFENSES TO THE FACT THAT ABORIGINES OBTAINED THE RIGHT TO DRINK ONLY RECENTLY. OTHERS SAY THE CONVICTION RATES DEPEND ON OTHER FACTORS, INCLUDING POLICE HARASSMENT. THE COURTS HAVE VARIED IN THE MANNER IN WHICH THEY TAKE THE ALCOHOL PROBLEM INTO CONSIDERATION IN DECIDING CASES INVOLVING ABORIGINES. PROBLEMS IN THE RELATIONSHIP BETWEEN POLICE AND ABORIGINES ARE DISCUSSED, WITH REFERENCE TO THE FACT THAT FEW ABORIGINES ARE EMPLOYED AS POLICE. EVIDENCE OF PREJUDICIAL POLICE ATTITUDES TOWARD ABORIGINES IS CITED. POINTS AT WHICH TRIBAL LAW AND CUSTOM CONFLICT WITH THE AUSTRALIAN CRIMINAL JUSTICE SYSTEM ARE NOTED. STATISTICS ON THE OUTCOME OF CRIMINAL PROCEEDINGS AGAINST ABORIGINES ARE EXAMINED. STUDIES HAVE SHOWN THAT ABORIGINAL DEFENDANTS ARE CONVICTED AND SUBJECTED TO IMPRISONMENT MORE OFTEN THAN ARE WHITE DEFENDANTS. A DISCUSSION OF LEGAL SERVICES FOR ABORIGINES NOTES THAT THE MAJOR PROBLEM IN PROVIDING SUCH SERVICES IS THAT THE BLACK POPULATION HAS LITTLE OR NO CONFIDENCE IN THE ENTIRE AUSTRALIAN LEGAL SYSTEM AND TENDS TO REGARD MAGISTRATES, PROSECUTORS, AND EVEN DEFENSE LAWYERS AS MERELY ARMS OF THE POLICE. (LKM)