A National Curriculum for Australian Judicial Officers

Unit 12: Australia’s Indigenous People

Rationale

Aboriginal and Torres Strait Islander peoples are Australia’s first inhabitants and presently an extreme minority. Numerous reports into the negative and often devastating effect of the justice system on Aboriginal and Torres Strait Islander people has prompted a significant number of education and training programs to foster a fairer and less harmful system of justice for Aboriginal and Torres Strait Islander peoples. In addition to education and training, other developments such as native title claims, amendments to the family law, juvenile justice, [constitutional law], international law and the development of specialised Indigenous courts, have increased the need for judicial education in this area. The judicial role will increasingly involve some aspect of issues related to Indigenous Australians.

Aim of this Unit

[To] provide judicial officers with information about matters in which the role or involvement of Aboriginal people might call for particular skills or a different approach.  They include Aboriginal courts, sentencing options, traditional Indigenous law. Other matters which would be of equal relevance include information about Aboriginal communities, communication, health issues and the experience of Aboriginal people. This unit is designed to establish a guide for programs that might be designed and tailored to meet the needs of particular judicial officers and the Indigenous communities they serve. Critical to that process of program design will be consultation with and the involvement of those judicial officers and communities.

Application of the Core Dimensions

D1

A focus of programs in this unit will be related to areas of the law (both substantive and procedural) that particularly affect Australia’s Indigenous people, such as native title, juvenile justice, criminal law, family law and [constitutional law]. Programs can provide pathways to develop jurisdictional expertise in relevant areas.

D2

Programs should consider that the interaction between an Indigenous person and the court system begins well before the individual appears before a judicial officer, either as a party or a witness. Court staff play a critical role in the process. Programs may consider the way in which judge-craft skills and judicial administration and management skills are important to effect of the justice system on Indigenous people. The work of both court staff and judicial officers contributes to the overall court environment in which Indigenous parties and witnesses find themselves; it can be important for both groups to have an understanding as to how their activities interact to create that environment, from an Indigenous perspective. Many issues that arise may involve aspects of court practices or procedures, where both judicial and administrative input will be important.

D3

Dealing with Indigenous people in the justice system requires an understanding of social context of the individuals involved, as well as developments in social values or public policy relevant to Indigenous Australians. Programs should consider how this dimension can be incorporated into programs under this unit.

D4

The development and delivery of programs under this unit should consider engaging in meaningful consultation with, and involvement of, Aboriginal and Torres Strait Islander people. Learning about social contexts against which and out of which particular issues and particular litigants come before the courts is an important consideration. Australia’s Indigenous population is a diverse community, linguistically, culturally and politically. The main distinction that is generally drawn is between Aboriginal and Torres Strait Islander peoples. However, the significance of family and clan structure in Indigenous society means that in reality there are many Indigenous groups or communities in Australia. There are also similarities and differences between those communities, as well as within them. The importance of land, or country, to Indigenous Australians is one example of a factor that is, at the same time, both a unifying principle, and one that contributes to the diversity of Indigenous communities, both in terms of geographical location and cultural identity. Any approach to developing a program in this area must, necessarily, take account of the diversity within both the Indigenous community and the judiciary.

D5

Programs in this units may wish to include a consideration of various societal attitudes and values towards Indigenous Australians that exist currently and, in the past, and how the personal attitudes and values of judicial officers may have been influenced by these societal views. Programs developed under this unit may wish to consider exploring the application of the principles of equality and fairness in a diverse society.

Programs

Program 8.1

8.1 - Australia’s Indigenous People

Aim

These programs provide judicial officers with information about matters in which the role or involvement of Aboriginal people might call for particular skills or a different approach.  They include Aboriginal courts, sentencing options and traditional Indigenous law.

Scope

These programs could encompass –

  • relevant legislation and case law
  • consideration of available bench books dealing with Indigenous people 
  • the role and impact of customary law
  • evidence and language in Aboriginal cases
  • the Aboriginal family, community and culture – the context of decision making
  • equality issues in general
  • child welfare, child removal, [second stolen generation?]
  • Aboriginal courts.
Program 8.2

8.2 - Intergenerational trauma, intergenerational strength

Aim

These programs provide judicial officers with an understanding of intergenerational trauma within groups and also intergenerational strength

Scope

These programs could encompass – 

  • current research on intergenerational trauma and strength
  • sources of intergenerational trauma for Indigenous people
  • impact of intergenerational trauma on Indigenous people, including mental health, decision making, responses, coping mechanisms, physical health
  • case studies of lived experience
  • healing pathways
Program 8.3

8.3 - Cultural Awareness and Cultural Attachment

Aim

These programs develop increased cultural capability in judicial officers, which encompasses cultural awareness, cultural safety and cultural competence, as well as an up-to-date understanding of cultural attachment.

Scope

These programs could encompass –

  • understanding of cultural awareness, cultural safety and cultural competence
  • diversity in Indigenous culture
  • myths and stereotypes
  • Ways of learning 
  • Barriers to cultural awareness
  • “Culture” a living entity rather than an historical artefact 
  • cultural attachment theory
  • Use of materials, including bench books and other resources
Program 8.4

8.4 - The Indigenous Community in your Jurisdiction: Indigenous Identity

Aim

These programs develop increased awareness of the culture and identity of Indigenous people in the community in which the judicial officer carries out their role

Scope

These programs could encompass –

  • Indigenous Identity 
  • Factors that constitute or define Indigenous identity, for example, the importance of “country” 
  • Identity & diversity – avoiding stereotypes
  • Origins
  • Population and distribution
  • Aboriginal groups, clans and families
  • Demographics – age, health, education, economic (employment and community development)
  • The location and role of Aboriginal organizations 
  • The interface between government bureaucracies and Aboriginal communities
  • Diversity – differences between Indigenous communities in cities, regional and remote locations
  • Mobility of (some) Aboriginal families and Aboriginal people
Program 8.5

8.5 - Understanding Indigenous Society Today: the lessons of history Indigenous communities prior to white settlement

Aim

These programs develop an understanding of the historical context of Indigenous society today

Scope

These programs could encompass –

  • Indigenous communities prior to white settlement
  • Post settlement history – Indigenous & non-Indigenous perspectives 
  • Past legislation & policies
  • Contemporary legacies
  • Personal and community experiences
  • Attitudes to the legal system
  • Family structures
  • Interactions between the Indigenous and non-Indigenous community.
  • Social & Kinship structures 
  • Family relationships
  • Community allegiances and responsibilities
  • Roles of immediate and extended family
  • Conflict between groups
  • Decision-making structures
  • Gender and culture – the experience of Indigenous women
Program 8.6

8.6 - Indigenous people’s experience of the criminal justice system Causes of Indigenous over-representation in the criminal justice system

Aim

These programs develop an understanding of the overrepresentation of Indigenous people in the criminal justice system and their experience of that system

Scope

These programs could encompass –

  • Causes of Indigenous over-representation in the criminal justice system – adult and young people
  • Policing practices and statistics, investigation, arrest, bail
  • The court system – understanding the process, impact of cultural factors and cultural obligations, relationship between court and the community, legal representation, the courtroom environment
  • Judicial perceptions and concerns.
Program 8.7

8.7 - The impact of health issues in the justice system

Aim

These programs develop an understanding of the impact of Indigenous people’s health issues in the justice system

Scope

These programs could encompass –

  • Alcohol and substance abuse
  • Medical conditions, for example, the incidence of diabetes and otitis media in Indigenous communities
  • The role of the health system in supporting Aboriginal communities and sustaining a non-custodial sentencing plan
Program 8.8

8.8 - Specific legislation or legal changes affecting Indigenous people

Aim

These programs maintain knowledge and develop mastery of specifical legislation or other legal changes that affect Indigenous people

Scope

These programs could encompass –

  • recent changes in the law, either legislative or case law relevant to Indigenous people
  • newly introduced laws relevant to Indigenous people
  • recent developments in judicial practice relevant to Indigenous people
Program 8.9

8.9 - Family violence

Aim

These programs provide judicial officers with information and skills to handle cases in which issues of family and domestic violence emerge.

Scope

These programs could encompass –

    • relevant legislation and case law
    • social research in regard to family and domestic violence
    • expert evidence in relation to:
    • the indicia of family and domestic violence
    • the effects of family and domestic violence
    • programs for the treatment of violence.
    • Community attitudes to violence, family violence and racism
    • The role of the court and the judicial officer
  • Determining culturally acceptable behaviour 
  • Legal and procedural delays 
  • The impact of alcohol and drugs

 

Program 8.10

8.10 - Indigenous Peoples, Sexual Violence and the Criminal Justice System

Aim

These programs provide judicial officers with information and skills to handle cases in which issues of sexual violence emerge.

Scope

These programs could encompass –

  • the experience of Indigenous victims of sexual violence
  • cultural expectations and attitudes
  • reasons for non-disclosure
  • managing the court room
  • trauma informed approaches
Program 8.11

8.11 - Understanding Communication

Aim

These programs provide judicial officers with information and skills to improve communication with Indigenous people in the court room

Scope

These programs could encompass –

  • Cross-cultural communication  – language, protocols, communication styles, non-verbal communication
  • Barriers to communication
  • The use of Indigenous languages, Aboriginal English and TSI Creole
  • Indigenous notions of time, mobility and place
  • Interpreters
  • Identifying the need
  • Qualifying & training interpreters
  • The role of the interpreter
  • Using interpreters effectively
Program 8.12

8.12 - Sentencing of Indigenous Offenders and the Bugmy Principles

Aim

These programs provide judicial officers with knowledge and understanding of sentencing law, principles, and types for Indigenous offenders

Scope

These programs could encompass –

  • relevant legislation, case law and principles of sentencing Indigenous offenders, including the Bugmy principle and key research relating to experiences of disadvantage and deprivation
  • Sentencing statistics for Indigenous offenders
  • Aims of sentencing and motivations of offenders
  • Cultural issues and sentencing
  • The impact and relevance of customary law
  • Effects of Imprisonment
  • On the offender
  • On families
  • Royal Commission into Aboriginal Deaths in Custody
  • Post-release support
  • Sentencing alternatives:
  • Youth diversion schemes/programs for young offenders
  • Community based orders
  • The role of community elders in the sentencing process 
  • Sentencing where the victim is Indigenous
  • Indigenous courts
  • The role of Aboriginal organisations 
  • The role of other services (such as transport) in supporting Aboriginal communities and sustaining a non-custodial sentencing plan
  • The relationship of the Aboriginal offender to the community in your jurisdiction
  • Diversionary programs: the most appropriate Aboriginal Court
Program 8.13

8.13 - Customary Law

Aim

These programs develop an understanding of Aboriginal and Torres Strait Islander Peoples customary law and the legal system

Scope

These programs could encompass –

  • basis and principles of customary law
  • role of customary law in Indigenous communities as a form of social organisation and justice
  • identifying and discovering customary law
  • the place of customary law in the Australian legal system
  • Relevance to matters concerning the court
  • Amendments to the Crimes Act 1914 (Cth) in relation to bail and sentencing
  • Traditional Aboriginal legal and criminal concepts and processes
  • dispute resolution processes and sanctions in customary law
    • Regional variations
  • Whose ‘customary law’ [‘bullshit customary law’]?