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The criminal law 30 years on

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Frank Brennan |  12 October 2016

 

Opening keynote by Frank Brennan at the 15th International Criminal Law Congress, Adelaide, 13 October 2016. Listen

I join with you in acknowledging the traditional owners of the land on which we meet, paying respect to their elders past and present. We would not have done that thirty years ago. I was a first year law student in 1971 when Sir Richard Blackburn gave his decision that Aborigines had no surviving rights to land recognised by the common law. One of my fellow students asked if he could write his annual 'Land Law' essay on Aboriginal land rights. He was told he could not, because there was no such thing.

Ten years later, I was junior counsel in the Alwyn Peter case in Queensland. Alwyn was the 15th Aboriginal male in three years to have killed another Aboriginal person on an Aboriginal reserve. In these cases, the victim was usually the accused's woman partner. Senior Counsel, Des Sturgess, told the court that the homicide rate was the highest recorded among any ghetto group in the western world. In each case, the accused and the victim were shaped by life on a reserve; and each in their own way was destroyed by it. To be a member of such a group, one did not have to be bad or mad; one had only to be Aboriginal. We defence lawyers had a good win in the Peter case. Having pleaded a defence of diminished responsibility, Alwyn walked free within weeks of the completion of the court proceedings. A woman anthropologist left me with the chilling observation that our forensic win had removed the one inadequate protection for defenceless women in remote Aboriginal communities — the minimal deterrence of the whitefella legal system. Meanwhile I was privileged to receive the last letter that Professor WEH Stanner ever wrote on 4 October 1981, he having been our key anthropological witness:

 

I am fascinated by the question: how do general ideas about human conduct change so quickly? I can recall about fifty years ago appearing as a witness for the defence in an Aboriginal murder case in Darwin before Wells J. He was notably unimpressed by my arguments but nevertheless reluctantly took them into account in mitigation, while looking round the court as if expecting trouble. Or do I mean 'remarkably quickly'?

 

Social change does happen. Judges shaping the common law and sentencing offenders and politicians enacting legislation criminalising new behaviours or restricting judicial sentencing options respond to community sentiment, values, and demands. For the last thirty years, I, like many of you have been preoccupied with the interrelatedness of Aboriginal dispossession, disadvantage and marginalisation. But I have remained a foreigner to so much of Aboriginal law, culture and religion. Aboriginal law though now recognised for the first time through Mabo and Wik as part of the law of the land even in the eyes of the colonisers, has had to survive under challenge from its own practitioners who sense both new horizons and shifting foundations in their lives. If it is to maintain its appeal to contemporary practitioners, the Aboriginal religious worldview has to embrace, or at least encounter and accommodate the worldviews of others. Aboriginal cultures are changing, being lost and retrieved at a rate never before experienced. Aboriginal people themselves know best that their system of law is under threat.

The breakdown of the law, the abandonment of myth and ritual, and violence in Aboriginal communities are exacerbated by readily available alcohol, widespread unemployment and concentrations of population which draw together groups from various clans and language groups for administrative convenience and economies of scale. Communities of such size, variety and outside contact never existed previously except for periodic ceremonial, trading and meeting purposes. As permanent societies, they are new creations in the post-contact era resulting from the push and pull of outside service delivery. Such 'communities' as they are felicitously, and often erroneously, described, do not and never have had a simple or uniformly acknowledged law, religion, or culture which could provide the basis for a customary dispute resolution structure or process.

Just over 30 years ago, in 1985, I attended a meeting of Aborigines living in a fringe camp at Mantaka on the outskirts of Kuranda by the Barron River in North Queensland. The Aborigines had lived on a reserve which was run by a church and which had since closed. Some of the people moved to government housing in Cairns but they did not like it much and the neighbours liked it even less. Eventually they ended up as fringe dwellers on land they regarded as their traditional country. They were seeking land title and money for houses from governments in Brisbane and Canberra. At the end of the meeting, the convenor pointed across the river and said, 'See that house: that is Mr X's weekender. They don't come very often but when they do they come by helicopter. See that helipad on the roof. It cost $3/4 million.' That was almost twice the amount they were seeking for basic permanent housing.

I have often told this story in schools. Especially in the better off schools, there are many questions: Why don't the Aborigines build their own houses if they want them? What are they complaining about? If the white man didn't come, they wouldn't even have a water supply. If it weren't for Mr X paying his taxes, there would be no money to pay these people welfare. After many years, I gave up trying to answer these questions or to refute these comments. In response, I ask only one question: Which side of the river are you standing on as you ask your questions?

There is never any doubt about which side of the river people are standing on. There are just as many questions that can be asked from the other side of the river. They are just as unanswerable. They are likely to make you just as upset and powerless and confused. Reconciliation is about being able to stand on either side of the river. It is also about being able to assist with the bridge building needed so that others can move more readily from one side of the river to the other. The judge and jury administering justice according to law need to be able to stand on either side of the river as they consider guilt and punishment. That's why mandatory sentencing regimes are so unjust.

A year after Alwyn Peter's case, the High Court had cause to overturn a decision of the Queensland Supreme Court, which had increased to six months imprisonment the sentence for Percy Neal, the elected leader of the Yarrabah Aboriginal Community Council, who was guilty of assault. With others, Neal went one evening to the home of Mr Collins, the white public servant who managed the community store. Neal was deeply upset about the management of the store and the Queensland Government's administration of the community generally. He twice spat at Collins, whose four-year-old daughter was present. He told Collins that he was a racist and that he and his family should leave the reserve. In the first instance a magistrate had sentenced Neal to two months imprisonment. The magistrate said:

 

Violence is something in recent times which has crept into Aboriginal communities. I blame your type for this growing hatred of black against white. You are not giving true representation as a leader to the people who voted you their leader. As a magistrate I visit four to five communities, and I can say unequivocally that the majority of genuine Aboriginals do not condone this behaviour and are not desirous in any shape or form of having changes made. They live a happy life, and it is only the likes of yourself who push this attitude of the hatred of white authority, that upset the harmonious running of these communities.

 

The appeal court of three Queensland judges then increased the sentence to six months imprisonment. On appeal to the High Court, Neal succeeded in having the six-month term overturned. The High Court spelt out the relevant sentencing principles and, by majority, sent the matter back to the lower courts for consideration of appropriate penalty. Justice Lionel Murphy observed:

 

That Mr Neal was an 'agitator' or stirrer in the magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. As Wilde aptly pointed out in The Soul of Man under Socialism, 'Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community and sow the seeds of discontent amongst them. That is the reason why agitators are so absolutely necessary. Without them, in our incomplete state, there would be no advance towards civilisation.' Mr Neal is entitled to be an agitator.

 

Justice Brennan set down the relevant sentencing principle:

 

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice.

 

Six years later, Aboriginal academic Marcia Langton wrote the report Too Much Sorry Business for the Royal Commission into Aboriginal Deaths in Custody, documenting the plight of Aboriginal women suffering excruciating abuse on remote Aboriginal communities. In recent times, Peter Sutton, one of the leading anthropologists for land rights in decades past, has written The Politics of Suffering, recalling that by 2000 the Aurukun community in Cape York, 'the main home of the Wik people', had gone from 'a once liveable and vibrant community' to 'a disaster zone'. I did not get that impression when the Wik people danced in Canberra after their High Court win in 1996. In the foreword to Sutton's book, Langton referred to 'the inland gulags and outback ghettos of remote Australia'. These are the communities that since 1967 have been granted land rights, sometimes over vast areas of traditional country. These are the communities that at great cost to the taxpayer were afforded a greater degree of self-determination on their traditional lands, attempting to make more real the choice between permanent settlement and migration, between self-determination and voluntary assimilation.

On 15 April 1991, Elliott Johnston QC, Patrick Dodson and their fellow commissioners signed off on their final reports for the long running Royal Commission into Aboriginal Deaths in Custody. That commission was set up by the Hawke government at the end of 1987 to investigate 99 Aboriginal deaths that had occurred in custody during the previous ten years. When tabling the reports in Parliament, Robert Tickner, the Minister for Aboriginal Affairs, noted that of the 99, 43 had experienced childhood separation from their natural families through intervention by state authorities, missions or other institutions; 83 were unemployed at the date of their last detention; 43 had been charged with an offence at or before the age of 15; and only two had completed secondary schooling.

Patrick Dodson on the eve of his entry to the Senate representing the Labor Party in Western Australia in April 2016, addressed the National Press Club setting out very troubling statistics about what has changed and what has remained the same in the last quarter century. At the time of the royal commission, Indigenous Australians constituted 14 per cent of the prison population; now they are 27 per cent of the prison population. In Western Australia, they are 38 per cent of the adult prison population. Admittedly the number of Australians identifying as Aboriginal and Torres Strait Islander has increased similarly in that time. In the 1986 census, there were 227,593 people who identified as Aboriginal or Torres Strait Islander. In the last census (2011), there were 548,370. The Australian Institute of Health and Welfare estimates that there are now more than 713,600 Australians who are Indigenous. Having been 1.5 per cent of the population at the time of the royal commission, they are now 3 per cent. At the very least, we as a nation need to admit that a person who identifies as Indigenous is just as likely to be in jail today as they were at the time of the royal commission — and ten times more likely than the rest of us. In that regard, nothing has changed.

The royal commission definitely improved the systems for supervision of persons in detention, reducing the risk of deaths in custody. It also led to better coronial procedures. But it failed to reverse Indigenous imprisonment rates and it did little to counter the underlying causes of Indigenous imprisonment.

When Bob Hawke announced the royal commission in 1987, Bob Collins, who was a Northern Territory Labor Senator with an Aboriginal family, made three key points. An Aborigine in custody was no more likely to die in custody than a non-Aborigine in custody. An Aborigine was just ten times more likely to be in custody in the first place, and thus ten times more at risk of dying in custody. In his maiden speech in the Senate, Collins said, 'The attention paid quite rightly to the deaths of Aboriginals in custody should not overshadow the much more serious problem of the number of premature deaths of Aboriginal people out of custody.' Collins was convinced that the underlying causes of disproportionate Aboriginal imprisonment had adverse impacts on all Aborigines, especially those in remote communities. Dodson suggested one major change which has occurred in the last thirty years. At the time of the royal commission, he saw police as the main problem. Now, he thinks it's the legislators who are the problem — attempting to be overly prescriptive to police and judges.

He pointed to serious issues in Western Australia and the Northern Territory, including mandatory sentencing laws and the NT scheme of paperless arrests which has received the green light from the High Court. Dodson offered a damning assessment of the legal system: 'For the vast bulk of our people the legal system is not a trusted instrument of justice; it is a feared and despised processing plant that propels the most vulnerable and disabled of our people towards a broken bleak future.' He pleaded, 'Surely as a nation we are better than this.'

It is good to see that the Australian Bar Association has pledged to join a national campaign to amend or remove all mandatory sentencing laws, review fine default imprisonment, and invest in justice reinvestment. It was distressing but ultimately reassuring to hear Dodson, the Father of Reconciliation and soon to be the nation's most prominent Aboriginal elected politician, publicly telling his own people:

 

We will not be liberated from the tyranny of the criminal justice system unless we also acknowledge the problems in our own communities and take responsibility for the hurt we inflict and cause on each other. Family violence, substance abuse and neglect of children should not be tolerated as the norm. And those that perpetuate and benefit from the misery caused to our people need to be held accountable.

 

Having been a royal commissioner all those years ago and having remained engaged with grassroots communities, Dodson was not offering any short term solutions to the underlying causes of Indigenous disadvantage and imprisonment. But looking ahead to his role as a senator in light of his recent experience as co-chair of the expert panel on constitutional recognition of Indigenous Australians, he did put out this challenge to his new colleagues in Canberra:

 

The Australian parliament needs to be more open to the idea of engaging in a formal way with Indigenous peoples on matters that affect our social, cultural, economic interests, as well as our political status in the nation state.

 

Dodson is ready to subject himself to caucus solidarity in the Labor Party and to compromise in the parliament. When asked by The West Australian about the cashless welfare card being trialled in the East Kimberley, he told the Press Club:

 

It's an attempt to deal with the set of circumstances at a regional level that people believe that's going to deal with some of the social impacts that are occurring that they find difficult, troubling, concerning. It's been devised by people in that part of the world, under the leadership of people from that part of the Kimberley.

 

I think the Labor Party would be open to matters where regional solutions are being worked through, where people's rights aren't necessarily being violated, but where there is a remedy brought about that will enable an improvement to the social circumstances. Sometimes you need some kind of a circuit breaker.

While continuing to oppose such targeted, discriminatory measures as permanent arrangements, he conceded the need for some temporary arrangements and experiments, provided only they were sought by the local people and implemented with their consent. This distinguished Aboriginal leader and proud Australian told us all, 'We have a wonderful democracy.' He is now an adornment to the Senate, and the country is all the better for having five members of the federal parliament with Aboriginal or Torres Strait Islander heritage.

For these past 30 years, I have been preoccupied with the interrelatedness of Aboriginal dispossession, disadvantage and marginalisation and I have tried to state a publicly coherent policy of reconciliation, justice and recognition for indigenous Australians. I come with fewer answers than I had 30 years ago. Noel Pearson says the 'symptom theory' underpinned our approach to the Alwyn Peter case. Pearson says:

 

All that was achieved by presenting a deeper historical understanding of the background to indigenous crimes and dysfunction was that the criminal justice system became sensitive to this background — and sentences became increasingly lenient. After a couple of decades we then reached a point where judges and observers — not the least Aboriginal people — started to wonder whether the loss of Aboriginal life was less serious than that of non-Aborigines. The criminal justice system may have tried to accommodate an understanding of the factors which Brennan and those who followed him had illuminated in the Alwyn Peter case, but it did nothing to abate offending and the resultant 'over representation' of indigenous people in the criminal justice system. In fact I would say that it made this problem worse.

 

These are troubling conclusions for any Australian committed to justice according to law for all persons, including indigenous Australians, who are more likely than any other group to be appearing in court for a custodial sentence. Everyone must be treated equally under the law. A judge sentencing a criminal needs to consider both the gravity of the offence and the particular circumstances of the offender. This fair and proper application of the law may have unintended and negative consequences for indigenous communities, where criminal assaults on victims are prevalent, while displaying an admirable commitment to the human rights of the individual offender.

In 2013, the High Court of Australia decided the case Bugmy v The Queen and affirmed the sentencing principle that had been set down by the High Court in Neal's Case in 1982. William Bugmy is an Aborigine who grew up in Wilcannia, a New South Wales country town marked by a high level of alcoholism and violence in the Aboriginal community. Bugmy had intentionally caused grievous bodily harm to a correctional services officer. The High Court considered Bugmy's circumstances as well as the gravity of the offence and concluded that the lower court had imposed too great a penalty. The majority of judges said, 'Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence.' But it is:

 

right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

 

The real indictment of all of us is that there would have been less warrant for the High Court to have made these observations 30 years earlier. Now the rivers of grog are worse and the violence more endemic.

Life for the contemporary indigenous person is a life of choice and diverse possibilities. Law and social policy should provide the possibility of a realistic choice on a spectrum of possibilities from the pursuit of a traditional lifestyle on traditional lands to fully integrated participation in the social, economic and political life of the nation state, while maintaining cultural traditions and perspectives. In Australia, the resurgent opponents of land rights and self-determination think the former is not an option; thus this is an unreal choice, or at least a very cost-ineffective choice. They argue for laws and policies that provide no option but accelerated access to the benefits of mainstream society and the modern lifestyle, which is completely disconnected from the traditional hunter-gatherer lifestyle of Aborigines long past. The advocates for land rights confront the situation that many Aborigines are now 'land rich' but 'resource poor'. Those with land rights or native title are not able to use the land in any practical way for development. Aboriginal land titles cannot be readily sold, leased or mortgaged. We are yet to find the right balance between utility and security of Aboriginal land holdings — utility for the present generation and for individuals, security for future generations and for communities.

Indigenous Australians do now hold a secure title to a large part of the Australian land mass but, for most of those living in remote communities, the conditions are still terrible. This year marks the fortieth anniversary of the Commonwealth Parliament's Aboriginal Land Rights (Northern Territory) Act 1976. Back then when that pioneering legislation was passed, conservative politicians such as Sir Joh Bjelke-Petersen were expressing concern that the granting or recognition of land rights would result in Aborigines being more removed from and less responsive to the health and education services of the mainstream community. Sir Joh refused even to discuss the possibility of land rights with the Commonwealth Government. Prime Minister Gough Whitlam tried to push Queensland in the direction proposed by the Woodward Royal Commission, which had proposed the model for Commonwealth land rights legislation in the Northern Territory. After the dismissal of the Whitlam Government, Malcolm Fraser went ahead and the Commonwealth Parliament passed land rights legislation along the lines recommended by Sir Edward Woodward. Sir Joh thought the Commonwealth's legislation in the Northern Territory in 1976 was carelessly introduced and he was concerned that the granting of land rights and self-management to Aboriginal communities in remote parts of Northern Australia could contribute to social isolation. In Queensland he was particularly critical of the Uniting Church, which had encouraged Aborigines in their aspirations to return to traditional country, setting up outstations many miles from conventional facilities such as hospital and schools, where reversion to the 'tribal' pattern of life was encouraged:

 

School attendances dropped 40 per cent and we cannot accept or tolerate a situation in this State where the young people of a community are thrust into an isolated situation, where by denial of fundamental education and health care services, and by an ideological indoctrination of Aboriginal separation and separate development, they would, by contrast with all other Queenslanders, be seriously impaired in choosing to pursue broader horizons of life in the future should they wish to do so. That Aborigines may be socially and educationally equipped to make such a choice in life is the fundamental aim of our Aboriginal advancement policy.

 

These concerns are now being voiced by many indigenous leaders, not to decry land rights but to plead for government intervention aimed at improving the health, education and employment prospects for Aborigines and Torres Strait Islanders living on their remote communities or seeking a life for their children in the urban areas of Australia. The children and grandchildren of the great land rights campaigners want to live in the best of all possible worlds, being Aboriginal but open to all the world has to offer, not being swamped by it, being able to stay afloat, able to make sense of it, able to embrace the mystery of it, even able to shape it, and to hand on to their children the uniqueness of their cultures and the universal possibilities of life in the modern world. Noel Pearson speaks of his people in Cape York as having a strong home base while having the confidence and opportunity to move in orbits as far afield as New York.

In Australia, life in the mainstream with some access, use and ownership of their traditional country may turn out to be the preferred option for most Aborigines. This will be an improvement on life in the mainstream without a secure land base, which is their entitlement in light of their historic dispossession. It will be different from living the life of a separate, sovereign indigenous people, but since colonisation that has not been a realistic option. It may also be very different from life on a self-determining community, choosing the best of both lifestyles. This has appeal and possibility only for a minority of contemporary indigenous Australians. It must remain an option. Bridging the gap between life in two worlds, under two laws, is the contemporary indigenous reality. It ought be recognised and respected by the state; it ought be reflected in our constitutional arrangements.

Indigenous groups with some recognition of their land rights face the dilemma: how to live within the nation state participating in its economy while maintaining distinctive culture and heritage. That ought to be their decision, and no one else's, even if that someone else is a government with a fresh political mandate. Those of us who are non-indigenous members of the nation need to guarantee the minimum requirements for these indigenous groups to make realistic life choices. In doing so, we have the opportunity, at some considerable cost, to ground our national identity and project the depth and complexity of the history of our land and all its peoples. Marcia Langton concluded her 2012 Boyer Lectures, which describe the benefits of the mining boom for indigenous Australians, by recalling a conversation with an Aboriginal friend at Perth airport:

 

He is a successful businessman, and he was heading home to attend Aboriginal law ceremonies for the next three months because, he said, 'the old people may not be around much longer'. These ceremonies will be held not far from the mines about which I have spoken. Aboriginal men and women have dedicated some proportion of this new social capital to cultural maintenance and renewal, and made Aboriginal endeavours commercially viable.

 

These are no longer fanciful life choices, but they are realistic choices for only a small minority of indigenous Australians. It is possible for some indigenous Australians to be involved at high levels in economic enterprises that exploit land resources while at the same time remaining committed to maintaining traditional ways, including ceremonies and obligations to the land.

Whichever country you survey, no matter what that government's policy, no matter what the present strategy of indigenous leaders, and no matter what the public understanding or sympathy about the position of indigenous minorities, land rights for indigenous people are an essential component in providing indigenous citizens with the choice and the potential to live an authentic indigenous life within the realistic confines of nationality and economy. Land rights are also the cornerstone for the settlement of historic post-colonial grievances in providing a land base for some indigenous persons and communities and economic and political bargaining power for others, assuring them a place at the table. With appropriate land rights measures, we can recognise the entitlement of indigenous communities to maintain and sustain their religious beliefs and practices, without threatening the public order of the society after colonisation. We can correct some historic injustices, which can be put right without occasioning injustice to other persons. These legal arrangements can help to validate the post-colonial legal system, providing a greater coincidence between law and justice. By drawing a line justly on past land grievances, the state's constitutional structure can then provide a necessary forum for the resolution of conflicting claims, assisting all citizens of the nation state to appreciate the place and entitlements of indigenous people and assisting all citizens of the nation state reach a better understanding of their history and their place in the world.

Australia is distinctive because our history of land rights is so brief, our approach so pragmatic and belated, and our commitment so refreshingly new, fragile and wavering. Some Australians now entertain the hope or thought that Aboriginal problems could be solved if community land titles were changed to alienable individual titles that could be readily sold, leased or mortgaged, encouraging indigenous communities to leave behind their traditional ways and enter the contemporary market place. Being able to sell, lease or mortgage their traditional lands, some Aborigines would definitely have an advantage in providing immediately for themselves and their dependents. But what then would be left for future generations who might look back and rightly claim that they were twice dispossessed, first by the British colonisers, and then by their twenty-first century ancestors who were too quick to forfeit their heritage?

Whatever the content or success of any forthcoming referendum, we Australians need to harness the benefits of land rights so that Aboriginal and Torres Strait Islander citizens can have the option of real choices, participating in all the benefits that come with being part of a twenty-first-century pluralist democracy, which gives each their due, especially those with primary custodianship of the only culture, heritage and traditions unique to this land. This is what the forthcoming referendum is about.

Indigenous and non-indigenous Australians need to work together for the constitutional changes that are necessary, correct and certain. Those of us Australians who cannot claim any Aboriginal or Torres Strait ancestors need to be attentive to the aspirations of those who do. Together we need to assess those aspirations as moral entitlements. We then need to determine what realistic life choices they offer, and at what cost. We must assess which of them are politically achievable. And each of us will then decide how to make our contribution to our nation, which provides a place of belonging for all, especially those who are the embodiment and the owners of our indigenous cultures, languages and heritage.

I have published my own views of what's politically achievable by way of constitutional recognition of Indigenous Australians in No Small Change: The Road to Recognition for Indigenous Australia. I dedicated the book to the late Liam Marrantya (1986-2009) a Ngangi-Wumeri man from Nauiyu Nambiyu, and others like him caught between the Dreaming and the Market. Most of you would never have known Liam, but some of you might recall the iconic photo of him as a baby when he was held up to the sky by Pope John Paul II in Alice Springs in 1986 when the pope was wearing the Aboriginal colours. At age 23, Liam took his own life having found that there was no one left to hold him. The most content Aboriginal Australians are those with a secure foothold in both the Market and the Dreaming. Those suffering the greatest anomie, those most frequently your clients as criminal lawyers, are those with a secure foothold in neither. For them, prison may be a last resort, but it is still a far too frequent resort no matter what other options are designed and funded. In the next thirty years, we need to do better, and we need to be particularly attentive to the needs of indigenous children.

When it comes to the treatment of children in the criminal justice system, we Australians have been less reforming and more authoritarian than equivalent jurisdictions. We have maintained ten years as the age of criminal responsibility for a child. However provisions such as Section 7.2 of the Commonwealth Criminal Code Act do provide:

 

  1. A child aged ten years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

  2. The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.

 

Experts in child offending, psychologists and criminologists agree that children rarely have the developmental capacity for criminal responsibility before the age of 14 years. Between the ages of 10-15 years, children undergo significant brain development, particularly to their pre-frontal cortex. This part of the brain is responsible for impulse control, planning and decision-making, making children susceptible to peer pressure and sensation and reward-seeking behaviour. This stage of development can also make it difficult for children to adequately engage in criminal justice proceedings, as they may be more likely to accept a plea offer, give false confessions or fail to keep track of proceedings.

The United Nations has ruled that the minimum age of criminal responsibility should not be lower than 12 years on the grounds that children under the age of 12 years have not yet reached the necessary developmental stages in 'emotional, mental and intellectual maturity' to be held responsible for criminal behaviour.

Ireland has increased the age of criminal responsibility from seven to twelve; and Scotland has increased it from eight to twelve. In France, it's 13; 14 in Germany; 15 in Sweden; and 16 in Belgium. The New Zealanders have something of a sliding scale. A 10 or 11-year-old can be prosecuted for murder or manslaughter, but not for any other offence. A child under 14 can be prosecuted only for the more serious offences.

The earlier a young person comes into contact with the justice system, the more likely they are to have sustained ongoing contact. New Zealand's system of Family Group Conferences and Scotland's system of Children's Hearings provide good models for alternatives to putting children before the courts. The New Zealanders encourage the attendance and participation of the victim, but the Scots do not. Our Jesuit Social Services here in Australia has been conducting a campaign to try and raise the age of criminal responsibility and to make the family group conference a more realistic option, particularly in jurisdictions like the Northern Territory. We are advocating a blanket minimum age of 12 years and for doli incapax to apply from 12 years to 15 years.

Group conferencing brings together the child, their family, the victim or their representative and relevant justice and welfare workers. The restorative justice approach enables the child to learn about the effect of their behaviour on others whilst allowing the victim and the child to express themselves. A consensus plan is then formed for the child, which enables relevant welfare interventions.

Family Group Conferences (FGCs) are an opportunity for the young person who has offended, their family, victims and other people like the police, a social worker or youth advocate to meet to discuss the offending behaviour and develop an agreed plan of action for the offender. Whilst being focused on the needs of the child, the FGCs empower families and communities by giving them a vital role in determining how the needs of the child should be addressed. If a unanimous agreement between the various FGC participants cannot be reached, only then will the case be referred to the court. There are strict timeframes in which the conference must take place to ensure the conference plays a relevant and effective role in responding to the incident.

Family Group Conferences sit within a broader system that addresses child and youth offending. According to the Youth Court of New Zealand, 44 per cent of those 10 to 17-year-old offenders will be issued with warnings by the police, 32 per cent will be diverted to the Police Youth Aid program, 8 per cent will be directed to the Family Group Conferences and 17 per cent will be charged in the youth court and then referred to the Family Group Conferencing (Marien 2012). The Police Youth Aid diversion program provides a number of options including a written apology to the victim, referral to programs to prevent reoffending (e.g. education or counselling), community service or reparations to the victim. This model is based on the perception that the family and the wider community networks have the rights and capacity to address the child's needs in a more effective way than an external authority.

A look at the data on Australian youths shows there is a hugely disproportionate number of Indigenous Australians being placed under supervision on a daily basis. Of those under the age of 12 — the proposed age of criminal responsibility in Australia — 76 per cent of 10- and 11-year-old males under supervision in 2014-2015 are Indigenous Australians, while 67 per cent of the supervised females under 12 are indigenous. This is despite Indigenous Australian males and females constituting only 3 per cent of Australia's population. Indigenous Australians account for about half of the average daily number of supervised youths up to the age of 15. Thereafter, Indigenous Australians are outweighed by their non-Indigenous counterparts, but in 2014-2015 they continued to account for 35-45 per cent of the 16-17 years olds under supervision.

There has been minimal change to the number of youths under supervision aged 13 and below since 2010-11; while amongst the older age brackets (14 to 17), there have been noticeable reductions. Undoubtedly for the latter this is positive, but that a similar reduction has not occurred amongst the younger, and acutely more vulnerable age groups, is concerning.

Before concluding, might I describe a recent initiative of our Jesuit Social Services. It's called Barreng Moorop. Young Aboriginal children who first have contact with the justice system aged 14 or younger are among the highest risk indicators of subsequent involvement with the system in later life. With this in mind, and the need to divert vulnerable children away from the youth justice system, Jesuit Social Services delivers the Barreng Moorop program for Aboriginal children aged 10-14 years old and their families across north-east and western metropolitan Melbourne. The program, recently re-funded for a further three years by the Commonwealth Department of Prime Minister and Cabinet, is delivered in partnership with Victorian Aboriginal Legal Service (VALS) and the Victorian Aboriginal Child Care Agency (VACCA).

Barreng Moorop understands and acknowledges transgenerational trauma and works with young people and their whole family, including extended relatives, to achieve sustainable and genuine outcomes. In the last financial year, the program worked with 24 young people and their families. Overall, we believe there is a need for service systems to more effectively contribute to the positive development of young people. We emphasise:

 

  • the importance of restorative justice principles, processes and practice

  • a therapeutic approach that responds to the needs of vulnerable children, particularly those in the state care system who come into contact with the justice system

  • an understanding of the particular needs of Aboriginal children and young people who are overrepresented in the youth justice system, a fact that is linked to extreme disadvantage experienced in the critical areas of health, education, employment and housing

  • the critical role of education as a protective factor, and the need to ensure vulnerable children's continued engagement in school.

  • an understanding of the composition of Aboriginal families and that the responsibility of child care and rearing is shared amongst a range of family members with, in many cases, a multi-generational core of kin providing primary care.

 

Whether or not we Australians get around to amending our Constitution in the next 30 years to recognise Aboriginal and Torres Strait Islander peoples, we need to do much more creative work discerning and establishing the place of belonging for Indigenous Australians in the life and institutions of the nation state, providing a secure place for Indigenous children to grow and thrive outside the gripping spiral of the criminal justice system. We criminal lawyers know only too well that the criminal justice and acute health institutions are the only institutions in which Indigenous Australians are over-represented. Sir William Deane, when a High Court judge, set the challenge:

 

One cannot but be conscious of the diversity of the views that have been expressed about the identification, extent and resolution of the problems involved in the mitigation of the effects which almost two centuries of alien settlement have had on the lives and culture of the Australian Aboriginals. Even among men and women of goodwill there is no obvious consensus about ultimate objectives. At most, there is a degree of consensus about some abstract generalised propositions: that, within limits the Aboriginals are entitled to justice in respect of their homelands; that, within limits, those Aboriginals who wish to be assimilated within the ordinary community should be assisted in their pursuit of that wish; that, within limits, those Aboriginals who desire separately to pursue and develop their traditional culture and lifestyle upon their ancestral homelands should be encouraged, assisted and protected in that pursuit and development. It is in the identification and resolution of the problems involved in determining 'the limits' that consensus breaks down and that the greatest difficulties lie. The cause of the Aboriginal peoples will not be advanced if those difficulties are ignored. To the contrary, the difficulties will only be exacerbated.

 

As governor-general, Deane delivered the inaugural Vincent Lingiari Lecture and distinguished 'complete assimilation and integration' from the 'general acceptance of the Aboriginal right of choice'. The dispute is no longer about the right of Aborigines to 'effective choice' but about the level of government support warranted for giving effect to the choices made. Deane rightly claimed, 'It is now accepted by persons of goodwill that those Aborigines who desire separately to pursue and develop their traditional culture and lifestyle within our multi-cultural nation should be encouraged, assisted and protected in that pursuit and development, and that those who wish to be assimilated within the ordinary community should be assisted in that wish.' Assimilation is no longer a bad word; neither is self-determination. Neither term captures the complexity of what needs to be negotiated, informing the choices of indigenous persons and of governments.

Most indigenous Australians maintain a foot in each of the worlds of the Dreaming and of the Market, of self-determination and assimilation. Some, like Liam Marrantya, end up without a foothold in either. For the majority of indigenous Australians in the third century since the assertion of British sovereignty, the Market is now more determinative of their identity than the Dreaming, with the result that there is less strained straddling to be done. Perhaps it is my own religious impulse, but I think it is impossible for most human beings to straddle two such different worlds without a deep, nurtured and nurturing spirituality. Those of us who have never had to straddle two such diverse worlds are not those best placed to advise how to overcome the 'social disintegration and personal demoralisation', especially in a society as secular and materialist as Australia. Governments that place a deep faith in the Market and in community 'interventions' enforced by instrumentalities of the state may be well intentioned, but unless they consult and work collaboratively with local Aboriginal leaders, who carry the deep spiritual insights of the Dreaming, they will be sure to make big mistakes, waste precious resources and forfeit trust. Meanwhile criminal lawyers will continue to seek justice for those who have fallen while seeking to straddle the unbridgeable gaps of history and contemporary life.

Concluding this year's Boyer Lectures entitled Fair Australia: Social Justice and the Health Gap, Sir Michael Marmot said:

 

When we began the WHO Commission on Social Determinants of Health I promised myself that I would read Don Quixote. Don Quixote is the story of a man who wakes up one day and imagines himself to be a medieval knight. He runs round doing chivalrous deeds trying to improve the world and everybody's laughing at him. That seemed an appropriate image for what I was doing. Imagining myself a knight, running around trying to improve the world and people were chuckling. I said this to the Spanish Minister of Health and he said, remember Sancho Panza. We need the idealism of Don Quixote the dreamer and we need the pragmatism of Sancho Panza, and I say to my colleagues, let's dream of a fairer world and take the practical steps necessary to achieve it.

 


With idealism and pragmatism, I invite you criminal lawyers in the next 30 years to imagine and enact a better criminal justice system which alleviates rather than exacerbates the devastating effects of colonisation and marginalisation on Indigenous Peoples, and most particularly their children. An intelligently designed criminal justice system must help secure the foothold of Indigenous children in both the Market and the Dreaming.

 



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Submitted comments

Before reading "No Small Change" I was unaware of the great impact three men were able to exert on Canberra's power brokers: Stanner, Dexter and Coombs. So I appreciated the quote from Stanner in this article. Liam Marrantya's story is a tragic one and others have suffered in the same manner. Our Indigenous people deserve that secure foothold in the Market and the Dreaming.

Pam 17 October 2016

Thanks for sharing about this 'national tragedy' as it was called to today by Senator Brandis announcing an inquiry into what is excessive indigenous incarceration rates and also that there is hope through programs like Barreng Moorop. Let's hope the inquiry's parameters are widened to include exploring such programs which make a difference and work towards Indigenous Recognition which will address some of the injury on a psyche level. The awareness that a foothold in the dreaming and in the Market is the best way to build resilience so ways to honour that need to be arrived it and of course, native title - a place to connect with the traditional culture needs to be vitally protected. I will be sending word to Canberra's Indigenous affairs minister and hopefully his interest will be piqued.

Gordana Martinovich 28 October 2016

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