A National Curriculum for Australian Judicial Officers
Unit Eight Australia’s Indigenous People
Rationale
Aboriginal and Torres Strait Islander peoples are Australia’s first inhabitants. Numerous reports into the negative and often devastating effect of the justice system and intergenerational trauma 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 and Torres Strait Islander peoples 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
Substantive and Procedural Law
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 care and protection proceedings. Programs can provide pathways to develop jurisdictional expertise in relevant areas.
Judge Craft Skills
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, a witness or a family member. Court staff play a critical role in the process. 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.
Social Context
Dealing with Indigenous people in the justice system requires an understanding of the 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. The development and delivery of programs under this unit should should engage 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 impact of colonisation along with diversity within both the Indigenous community and the judiciary.
Attitudes and Values
Programs in this unit 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.
Independence
The courts remain independent of the other branches of government and judicial officers are not subject to improper pressure or influence when making decisions. 10
Programs
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, and the second stolen generation
- Aboriginal courts.
Footnotes
- Without Fear or Favour: Judicial Impartiality and the Law on Bias: Australia needs to address “a lack of co-ordination and an absence of resources to plan and develop systematic judicial education programming”, as was the central challenge facing Canada approximately 15 years ago. (p63).
- The 2007 report ‘A Curriculum for Professional Development for Australian Judicial Officers’, prepared by Chris Roper, AM
- For a complete list of references, please see Annexure A.
- National Standard for Professional Development for Australian Judicial Officers 2006, adopted by the NJCA and endorsed by the Council of Chief Justices, the Council of Chief Judges and the Council of Chief Magistrates, as well as the Judicial Commission of New South Wales, the Judicial College of Victoria, the Australasian Institute of Judicial Administration, the Judicial Conference of Australia and the Association of Australian Magistrates. A review of impact of the Standard was undertaken in 2010 by Christopher Roper.
- For an additional discussion of this issue, see speech by former Chief Justice Robert French, Judicial Education - A Global Phenomenon, The International Organisation for Judicial Training, The Fourth International Conference on the Training of the Judiciary, Sydney, 26 October 2009
- Attaining Judicial Excellence: A Guide for the NJCA, 2019
- The Honourable Justice J Allsop AO, Continuing Judicial Education: the Australian experience, Judcom, Handbook for Judicial Officers – the role of judicial education
- Justice Stephen Gageler, Keynote Address, NJCA 20th Anniversary, 8 December 2022
- Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and The Law on Bias, ALRC Report No 138 (December 2021) at [12.78]
- See Forge v ASIC (2006) 228 CLR 45, 80 (Gummow, Hayne and Crennan JJ) (‘judicial independence refers not only to independence from the Executive, it refers to independence from other sources of influence’); Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia (Federation Press 2016); Rebecca Ananian-Welsh and George Williams, ‘Judicial Independence from the Executive: A First Principles Review of the Australian Cases’ (2014) 40(3) Monash Law Review 593.
- Alan Rose, ‘The Model Judiciary – Fitting in with Modern Government’ (1999) 4 The Judicial Review 323, 326. See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [80] (Gaudron J) (‘Impartiality and the appearance of impartiality are so fundamental to the judicial process that they are defining features of judicial power’)
- TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 [27] (French CJ and Gageler J) (the judicial process involves ‘…observance of the rules of procedural fairness.’)
- The Hon Stephen Gageler AC, ‘Judicial Legitimacy’ (2023) 97 Australian Law Journal 28, 28, and Appleby and Roberts, “Studying judges: The role of the Chief Justice, and other institutional actors”, and “The Chief Justice Under Relational and Institutional Pressure, ” Cambridge University Press 4 May 2021
- See Australian Law Reform Commission, Report 89: Managing Justice (2000) 190 (noting that judicial education can create ‘economies of scale and other matters relating to efficiency.’)
- See Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J) (‘the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hallmark of judicial as distinct from administrative procedure.” To require a court invariably to sit in closed court is to alter the nature of the court’); Commissioner of the Australian Federal Police v Zhao (316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ) (‘the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.’)
- Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 73 Australian Law Journal 33, (‘If we are to be governed by the rule of law, we must have a judicature to administer it. The characteristics of that judicature reflect the functions it is charged to perform…[It] must be a competent judicature; there must be judges and practitioners who know the law and its purpose, who are alive to the connection between abstract legal principle and its practical effect, who accept and observe the limitations on judicial power and who, within those limitations, develop or assist in developing the law to answer the needs of society from time to time.’)
-
Three I’s: Independence, Impartiality and Integrity
- Judicial Legitimacy”, The Hon Justice Stephen Gageler of the High Court of Australia, a paper delivered at the 2022 AJOA Colloquium on 7 October 2022.