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Criminal Law and the Aboriginal Community

In addressing Criminal Law and the Aboriginal community, traditionally in Australia, Aborigines have faced severe injustices and continue to do so in todays society. Though there have been some advances, the law has been mostly ineffective. The main sub issues within this issue are that of the police targeting of Aboriginal youth, leading to an over-representation of this youth in the juvenile justice system, the over policing of the aboriginal community as a whole and the overrepresentation of Aboriginals in the criminal justice system. Though attempts have been made to eradicate these issues, they have not yet been eradicated. Elliot Johnston in the Report into Aboriginal Deaths in Custody wrote that Detention as a juvenile is in turn a critical determinant as to further progression to the adult criminal justice system and this is the reason why the over policing and over representation of Aboriginal youth is a major concern. Partly to address Johnstons concern, the Young Offenders Act 1997 (NSW) was enacted. The aim of this Act was to provide an alternative to the court system for youths committing certain crime through warnings, cautions and other punishments of the sort. This Act is particularly relevant to Aboriginal youth with The ABC 21 June 2011 describing the over representation of Indigenous youth in Australia as a national crisis, finding that Aboriginal youth are 28 times more likely than non indigenous youth to be detained. Alongside this harsh truth, the latest release of figures of Juvenile in prison states that 84% of the imprisoned juveniles in 2004 were Aboriginal. This is partly due to relations between Aboriginals and the police being strained over the years, leading to resentment towards each other on the part of both parties. The height of the tensions was seen through the riots in Redfern after a police pursuit caused the death of an Aboriginal youth, TJ Hickey. The Sydney Morning Heralds editorial on the issue on 17 July 2004 claimed that the incident spoke volumes about the failures of black-white relations, insinuating that this was a partly a failure of the laws. The NSW Youth Offender Law Reform Commission (NSWYOLRC) blames this on the differential treatment of Aboriginal and Torres Strait Islander people who were found to be less likely than non indigenous people to be cautioned. The NSWYOLRC did however find that since its introduction, the Act had achieved a 50% reduction on Aboriginal first offenders being taken to court, however even amongst first offenders an Aboriginal young person was 1.8 times more likely to be taken to court than a non Aboriginal person. Though the Young Offenders Act 1997 (NSW) has been introduced, partly, in an effort to reduce the prevalence of Aboriginal youth in the criminal justice system, it has been almost completely ineffective in doing so. Its only positive has been in reducing the percentage of Aboriginal first time offenders being taken to court however even here, the Aboriginal youth is disadvantaged and thus still face injustice. The relationship between Indigenous Australians and the Australian Police force has been less than satisfactory and with this the issue of over policing and in rare (rare in todays day and age) cases, police brutality towards Aboriginals have arisen. The National Prison Census in 2011 concluded that the Indigenous crime rate was 14 times higher than that of the non indigenous crime rate buteven with this knowledge; no legal action has been taken to combat the issue. With the release of the figures on the indigenous crime rates, The ABC June 25 2011 commented that over policing *is+ to blame for indigenous prison rates. The ABC supported this statement through citing a key

investigator into the Royal Commission into Aboriginal Deaths in Custody, Professor William-Mozley who stated that a quarter of male prisoner and a third of female prisoners are indigenous ...and [these figures] are correct due to over policing. Mozley blames this over policing on the use of police discretion wherein it is evident that the police force seems to focus on the Indigenous community. This has led the indigenous community to believe they are being targeted and this was seen through the words of TJ Hickeys Aunt, shortly after his death stating to The Age on February 16 2004 If youre black and you see a police car, you just run, highlighting the lack of trust between Aboriginals and the police force. This lack of trust may also be partly due to some rare (has become rare recently) cases of police brutality such as the use of excessive force as seen in Spratt v Fowler (2011) wherein an aboriginal man was tasered 13 times by a policeman. The presiding judge deemed this to be excessive use of force stating with the aid of CCTV footage that Mr Spratt had not violently resisted in the way the police alleged and then later proceeding to drop the charges laid due to the excessive force used. However despite acknowledging the excessive use of force, no punishments were handed out to the culpable police officers, highlighting the laws failure in condemning such acts. Thus it can be seen that, in issues of over policing Aborigines and police brutality towards Aborigines, as there has been no significant legal action taken to combat the issue and due the fact that the issue still exists in the modern society, the Aborigines are facing a massive injustice. With their over representation in the criminal justice system, Indigenous Australians have been severely disadvantaged. The Royal Commission into Aboriginal Deaths in Custody 1991, reported that Aboriginal people were 15 times more likely to be in prison than non aboriginal people The report made several recommendations to resolve the issue, and though many have been fulfilled, some measures still need to be implemented. In 2012, the ABS concluded that at any moment, 2.2% of Australias indigenous population was imprisoned, whereas the overall rate was only 0.00166% percent of the population was imprisoned and stated that this trend in disparity had been ongoing . In an attempt to reduce the shocking amount of Indigenous prisoner, the Criminal Procedure Amendment Regulation Act, 2005 (NSW) was enacted. This act set out an alternate sentencing in, Circle Sentencing for adult Aborigines and gave circle sentencing full powers of the court. This has enabled greater aboriginal involvement in the criminal justice process. The Sydney Morning Herald 30 September 2010, outlines the case of an Aboriginal man who was not only punished but also rehabilitated due to circle sentencing. This leads the paper to explain that that though radical, The method has been proven effective in the ten NSW locations where it operates, proving the effectiveness of Circle Sentencing. Even though the government hasnt fulfilled several recommendations of the Royal Commission, with the introduction of a customary Aboriginal trial system, the law has been largely effective.