Australian Criminal Justice System - Research Paper Example

Australian Law [Name of the Student] [Name of the University] Australian Law Australian criminal justice system is based on the fundamental principle that justice must be rendered and must also be seen to be done. The Aboriginal customary law has the capacity to play a crucial role in deciding certain cases. Disallowing the application of this law could result in injustice. It is imperative to make Aboriginal customary law an important element of the Australian criminal justice system. In addition, the importance of Aboriginal customary law, demands that its recognition should not be at the discretion of the judges and magistrates. The Law Reform Commission had observed that judges and magistrates in New South Wales did not subscribe to the belief that the Aboriginal customary law was to be referred to while imposing sentences (Law Reform Commission, 2000). The aboriginals are considered to be a distraught community within Australia. This perception has changed the attitude of judges while exercising sentencing options. Thus, it has become more frequent for judges to consider peacemaking and community restoration, as significant goals, in decisions relating to sentencing. In this endeavour, the judges are increasingly accepting the expert opinion of the Aboriginal community, in respect of customary law (Douglas, 2005). This situation ultimately resulted in imposition of lenient sentences and punishments by the courts. The offenders are imposed with shorter sentences of imprisonment, and thereafter required to be bound over to be of good behaviour for a predetermined period. On occasion, the courts have even suspended the sentence and binding over period. Furthermore, on the basis of certain customary practices, the courts have reduced the prison sentences, in some cases. The courts consider the customary practices, such as physical punishment, banishment or meetings of reconciliation to decide the sentence period (Douglas, 2005). Wherever, judges have included the practices of customary law, they have stressed that such acceptance plays a major role in restoring community peace. They have conceded the wishes of an Aboriginal community if these wishes do not compromise what would constitute just punishment. The white legal system does not hold sway over customary law. Although the Aboriginal people have their own sentencing process, they have been drawn into the white legal system; which in turn serves to integrate the Aboriginal people into the mainstream of Australian society (Douglas, 2005). In the past, judges had believed that the white legal system could be imposed over Aboriginal society and its laws. It was their firm conviction that eventually, Aboriginal customary law would be totally eliminated. However, this perception proved to be false, and at present, judges apply to some extent, both the white legal system and the Aboriginal customary law and practices (Douglas, 2005). As such, in the Northern Territory, judges permit the use of Aboriginal laws; and they have recognised the effectiveness and strength of Aboriginal penal discipline. However, the existence of legal pluralism is found to be ineffective in the area of restoring peace, to Aboriginal communities (Douglas, 2005). The payback system under the customary law punishment has broadened the scope of application of the criminal law, in sentencing. In some cases, the Aboriginal defendants have appealed to the courts to reduce the customary punishment that could be imposed on them. The Northern Territory has applied the Aboriginal criminal law. This situation resulted in legal pluralism, and judges had condoned the practice of customary punishment. (Douglas, 2005). Consequently, the Aboriginal people are both the supervisors of the legal system and the supervised. The Australian legal system clearly demarcates religion and law. The Aboriginal customary law integrates religion and social norms with legal matters. Under the customary law, physical punishments such as beatings and spearing are accepted forms of punishments. Aboriginal communities inflict the punishment of spearing in the thigh for serious crimes like murder, adultery, elopement and physical injuries. In this punishment, the relative or kin of the victim or the victim himself launches the spear against the defendant. The issue is deemed to be resolved, when the spear pierces the thigh of the defendant, or there is a flow of blood (Traditional Aboriginal Law and Punishment). The objective behind these punishments is to maintain peace in the community. In Walker v New South Wales, the plaintiff Denise Walker was an Aboriginal. He was charged with violation of New South Wales’ laws. Walker argued that the State Parliament was not empowered to make laws affecting the interests of Aboriginal people. The High Court dismissed his appeal. This case is a landmark case in the area of Aboriginal customary law application (Walker v New South Wales). It established that Aboriginal customary law would not have supremacy over the white legal system. However, the case law of Australian courts reveals that there are a number of cases in which the Aboriginal practices and customary law have been adopted. For instance, the cases of Foster v Mountford and Rigby and Aboriginal Sacred Sites Protection Authority v Maurice had established that courts recognise the practices and customary law. In these cases, the Northern Territory courts had given due recognition to the ceremonies practiced by the Aboriginal people. In the case of Roberts v Devereux, the Supreme Court of Northern Territory had recognised the traditional status of the plaintiff. In several other cases, the courts have acknowledged some of the principles of customary law. (Sarre, 2007). This law provides protection against self – incrimination and provocation, and the courts have supported these provisions. In a case of manslaughter, the trial court ordered payback, in respect of the accused William Jagamara Walker. The court made this ruling, without consulting with the family members of the victim. This case demonstrated the mistakes that a judge could commit, if he were inadequately informed about customary law and the cultural practices of the Aborigines. The mere acknowledgement of customary law does not grant it the same status as the common law. (Sarre, 2007). The Walker case clearly established that customary law cannot be applied under all circumstances. Customary law has never succeeded in establishing guilt in criminal cases. Nevertheless, the courts have considered the customary context, in which a crime had been committed. In The Queen v GJ case, the court found that the behaviour of the offenders was of very serious nature, and dangerous to the community. Therefore, it was opined that the punishment should be of sufficient gravity to act as a deterrent. Moreover, the court was under a duty to protect women and children, who constitute the most vulnerable members of the community. The court stated that the law of the Northern Territory was to be applied. The defendant in this case was an elder in the Aboriginal community; and while pleading guilty to the crime, he contended that it was his first offence (The Queen v GJ). Furthermore, it was argued that the defendant was not a sexual predator and would never reoffend. Traditional punishment could discriminate against the more vulnerable members of the community. The punishments are spearing or beating, and they have a much more serious effect upon women, children and the elderly people of the community (Law Council of Australia, 2006). In the majority of the Aboriginal communities, boys who are 14 years of age, are treated as men, subsequent to the completion of the initiation period. The customs of the Aboriginal people that promote violence against vulnerable members of the community, like women and children have been found to be problematic. According to the Law Council, such customs and practices can be attributed to long term behavioural problems that result from the abuse of intoxicants. Moreover, individuals who are exposed to violent physical assaults could develop major health problems, if they had already been suffering from significant health problems (Law Council of Australia, 2006). The punishment prescribed for murder, by the customary law is spearing in the thigh. Such punishment may not be imposed, if there are mitigating circumstances. The imposition of spearing has to be agreed upon by the families of the victim and the offender, or by the community. Moreover, such punishment has to be negotiated by an appropriate lawman (law, 2003). Subsequent to concluding negotiations, the punishment is inflicted in public, as per the agreed upon procedure. It is supervised by the authorised adjudicators, who moderate the process and interfere, if required by the situation. Such punishment results in wounds that could be of a permanent nature. However, spearing should not have fatal results. If the offender dies from the wounds caused by the spearing, then the persons who conducted the payback will be guilty of murder and must in turn undergo payback (law, 2003). Furthermore, if the offender is not in a position to undergo payback, then his family members are expected to undergo the process. Sometimes, an arrested offender is required to undergo payback, when released on bail. On occasion, an offender had been incarcerated for long periods; and this has resulted in considerable social tension in the community, due to the failure to conduct payback (law, 2003). The payback system presents the distinct possibility of serious conflict between the Aboriginal law and Australian law. In addition, the infliction of bodily harm upon the offender renders the person inflicting such harm, criminally liable for the outcome of such act. The inflictor of such harm is clearly in breach of the provisions of the Criminal Code (law, 2003). In direct contrast to this, the non – application of customary law, leads the Aborigines to believe that transgressions have not been adequately addressed. Consequently, they will harbour the thought that the crime committed had not been redressed (law, 2003). These are serious considerations that affect not only the indigent community but also the person who has to inflict physical punishment. It is undoubtedly difficult to bring about meaningful change to criminal law, so that relevant reform could be effected in the area of customary law that involve physical punishment. This situation has been a thorn in the side of the legal system of the Northern Territory, for well over a half century, and there is no solution in sight. It is imperative for the government to provide an adequate response that would resolve this dilemma (law, 2003). . Any such initiative would of necessity have to include the tribal elders and other senior law persons of the indigent people, and their counterparts in the Australian legal system. Melanesia or payback refers to the aboriginal system of taking revenge. It is applied in disputes involving death or stealing of a wife. The usual punishments are sorcery, the giving of suitable gifts as compensation, corporal punishment or execution. This system was noticed by the whites, only after the colonisation of Australia in 1788 (Finnane, 2001, p. 293). Of late, the judiciary has conceded that the aboriginal law has some positive features. Specifically, it has been recognised that some aspects of payback, are extremely efficacious in resolving disputes and strife, among the aboriginals. Despite the best efforts of the white community to impose their culture and legal systems upon the aboriginals, customary law has prevailed (Finnane, 2001, p. 293). In the Northern Territory, the Aboriginal elders have made a strident call for legitimisation of the laws and punishments that had been in vogue from millennia, in their society. It has long been contended by some sections of Australian society that the customs and laws of the indigent population should be incorporated. It is fervent desire of the aboriginals that members of their community, who indulge in crime against other aboriginals, should be punished as per their laws (Beck, 2009). It has been stated by the elders of the indigent community that local crimes should be addressed at the local level. Failure to do so was perceived to result in long standing difficulties. These elders have asked the Australian government to legitimatise customary law, so that there would be no long standing disputes. In addition, it has been recommended that aboriginal offenders should be granted bail, so that they can undergo customary punishment, prior to being sentenced by the white legal system (Beck, 2009). In the absence of payback, the dispute remains unresolved, as per the principles of Aboriginal law. This could result in retaliatory attacks by the victim’s family against that of the offender’s family. The punishments recommended by customary law range from public humiliation to piercing the thigh of the offender with a spear (Beck, 2009). Aboriginal law does not advocate the execution of an offender, and limits itself to causing wounds to the criminal. However, this objective is difficult to realise, in practice, as Australian society cannot accept such punishments. As a civilised nation, such punishments have to be perforce discarded. Moreover, Australia is a signatory to a number of international conventions, which promote human rights. These conventions preclude the use of physical violence against offenders, as punishment (Beck, 2009). The punishments inherent in payback are certain to be viewed as cruel and unusual; consequently, their adoption in Australian law is remote. In the Mabo case, the High Court had ruled that the legislation, in the context of native title, remained in force, despite the acquisition of sovereignty by the Crown. Now, the question arose, as to whether this could be extended to Aboriginal criminal law (Mabo and Others v The State of Queensland (No 2), 1992). In other words, was it possible to conclude that customary law would be ratified by common law? This was disclaimed by the decision in Walker, wherein it was held that the fundamental norm of any legal system was that it should apply to all the citizens. Therefore, any initiative or intervention that provides for different criminal sanctions, on the basis of ethnicity or race, was at divergence with this principle (Walker v New South Wales). This was also the gist of the provisions of the Racial Discrimination Act 1975. As per the provisions of both the English and Australian criminal laws, no other body of law could operate in tandem. For instance in Juli, the inebriation of an Aboriginal was held to be a mitigating factor, as it was the outcome of the social and economic environment of the defendant, from his childhood (R v Juli, 1990). Similarly, in Iginiwuni, the court had clarified that although the same law was applicable to aboriginals and non – aboriginals, concession had to be made towards the ethnic, environmental and cultural factors, while dealing with aboriginals (R v Iginiwuni , 1975). Furthermore, in Fernando, the presiding judge stressed that a prolonged term of incarceration for aboriginals would be extremely harsh, due to the fact that these people would have to serve the sentence in an environment that would be substantially alien to them (R v Fernando, 1992). The courts of the Northern Territory have been more active in accepting that customary punishment is inflicted on aboriginals. To this end the Court of Criminal Appeal of the Northern Territory, as well as the Federal Court of Australia have deemed the infliction of tribal punishment to be a mitigating factor. Thus, the courts make allowance for the imposition of punishment under the customary law, while pronouncing a sentence on the tribal offender (R v Minor , 1992). Customary law brings to bear considerable social and moral pressure upon the aboriginals, and this was demonstrated in the Jamilmira case. The accused was an aboriginal male who had been sentenced for having carnal knowledge of his promised wife. Despite the fact that they had not yet been married, it was permitted by customary law, to have sexual intercourse with the promised wife (Hales v Jamilmira, 2003). Nevertheless, the courts have not recognised customary law, when it was at divergence with the established standards of sentencing. Consequently, there is no possibility of pronouncing a sentence that would be longer than usual, with the objective of preventing the infliction of traditional punishment (R v Jackie Jamieson, 1965). It has been conceded that the opinion of the local tribal community is to be taken into account, at the time of sentencing an offender. However, the outcome of this initiative cannot be the imposition of a harsher sentence on the offender (Regina v Munungurr , 1994). Undoubtedly the aim of the courts has been to protect children, women and the infirm against punishment that is of a physical nature. Consequently, any tribal punishment that entails physical injury or battery is precluded by the case law of the Australian courts. In multiracial societies, such as to be found in Australia, the maintenance of social equilibrium assumes significance. There are several means of preserving such equilibrium, and the system of payback or reciprocity that avenges wrong, is an important intervention. This principle, chiefly operates between members of the aboriginal community, and finds favour with all the indigenous tribes of Australia (Aspects of Traditional Aboriginal Australia). Australian criminal law has given credence to the system of payback, which is the indigenous response to crime. In this manner, aboriginal punishment has been incorporated into national law, under the classification of alternate punishments. This constitutes progress towards legal pluralism; and it establishes the pliability of the extant legal system in Australia, which promotes alternate legal systems that entail a lesser number of sentences of imprisonment. In the Walker case, the judge translated the prescribed Aboriginal Spear punishment, into an alternate punishment. (Soeteman, 2004, p. 91). This enabled him to circumvent the imposition of double jeopardy. The extant Australian law does not allow the Aboriginals to be prosecuted under the provisions of the customary law; in instances where there is danger of physical harm being inflicted, as punishment. Several recommendations have been made to the Australian government that it should convince the indigent people to eschew customary law and adopt alternate dispute resolution techniques, whenever, the latter would involve the infliction of grievous bodily harm (Assessment Component 2: Civic Participation Task, 2006). However, it has been contended by the proponents of customary law that tribal law had been in existence for several thousand years; whereas, Australian law had been in force for only a few centuries. To this the opponents of tribal law have argued that customary law promotes punishment that violates human rights. (Assessment Component 2: Civic Participation Task, 2006). In addition, the customary law breaches the fundamental principles of a civilised society. Although, the Australian legal system, presumes sovereignty, and therefore uniform laws for the entire populace, the fact remains that the value of some of the facets of aboriginal law have been allowed to prevail (Finnane, 2001, p. 293). Thus, the extant white legal system has been forced to accept that customary law does wield considerable influence. The customary law has proved to be beneficial in redressing wrongs in the tribal community. However, when it comes to physical punishments like spearing or beating with nulla nullas, there is considerable opposition; and it is strongly believed among the non – tribal Australians that such practices should be disallowed. The practices that entail physical punishment violate human rights and the standards of civilised society. Consequently, their continuance has been strongly opposed. References Racial Discrimination Act 1975. (n.d.). Aboriginal Sacred Sites Protection Authority v Maurice , 65 ALR 247 (1986). Aspects of Traditional Aboriginal Australia. (n.d.). Retrieved March 30, 2010, from http://www.aija.org.au/online/ICABenchbook/BenchbookChapter2.pdf Assessment Component 2: Civic Participation Task. (2006, June 22). Retrieved March 30, 2010, from http://www.saceboard.sa.gov.au/support/society/legl/documents/legl-ws-019.pdf Beck, J. F. (2009, November 29). A spear in the leg before going to jail. Retrieved March 30, 2010, from Asian Correspondent: http://us.asiancorrespondent.com/rwdb-jfbeck/25650-a-spear-in-the-leg-before-going-to-.htm Douglas, H. (2005). Customary Law, Sentencing and the Limits of the State . Retrieved March 27, 2010, from The Canadian Law and Society Association: http://muse.jhu.edu/journals/canadian_journal_of_law_and_society/v020/20.1douglas.html Finnane, M. (2001). 'Payback', Customary Law and Criminal Law in Colonised Australia. International Journal of the Sociology of Law , Volume 29, Issue 4, Pages 293 – 310. Foster v Mountford and Rigby, 14 ALR 71 (1976). Hales v Jamilmira, Unreported NTCA 9 (2003). Law Council of Australia. (2006, May 29). Aboriginal Customary Law. Retrieved March 29, 2010, from http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=E3F2E50E-1E4F-17FA-D204-C32419A643D9&siteName=lca Law Reform Commission. (2000, December 22). Report 96 (2000) - Sentencing: Aboriginal offenders. Retrieved March 27, 2010, from http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3 law, C. o. (2003). Report on Aboriginal Customary Law. Darwin NT: Northern Territory Law Reform Committee. Mabo and Others v The State of Queensland (No 2), 175 CLR 1 (1992). R v Fernando, 76 A Crim R 58 (1992). R v Iginiwuni , SCC No. 6 (1975). R v Jackie Jamieson (Court of Criminal Appeal WA 1965). R v Juli, 50 A Crim R 31 (1990). R v Minor , 79 NTLR 1 (1992). Regina v Munungurr , 4 NTLR 63 (1994). Roberts v Devereux, 450 of 1980 (Supreme Court of the Northern Territory April 22, 1982). Sarre, R. (2007, July). Aboriginal Customary Law. Retrieved March 29, 2010, from http://www.vanuatu.usp.ac.fj/library/Online/Customary_law/Sarre.htm Soeteman, A. (2004). Pluralism and law: proceedings of the 20th IVR World Congress, Amsterdam, 2001. Franz Steiner Verlag. The Queen v GJ, [2005] NTCCA 20. Traditional Aboriginal Law and Punishment. (n.d.). Retrieved March 29, 2010, from Law Reform Commission of Western Australia: http://www.lrc.justice.wa.gov.au/2publications/reports/ACL/DP/Part_05B.pdf Walker v New South Wales, (1994) 69 ALJR 111. Read More