QUESTION’
The Case Study.
A female Indigenous defendant had already received punishment under Indigenous law prior to reaching the Australian Court Justice System for sentencing. On hearing the matter the Court was advised by an Elder that the facts and circumstances arising from the defendant’s Aboriginality, namely the operation within her community of Aboriginal practices affecting her, remain relevant and if proven by evidence to exist should mitigate sentencing.
Please read and answer the following questions:
- What are some of the key features of the Indigenous justice systems operating in Australia and how do they differ from the general justice system?
- What do you see are the positive and negative aspects to official recognition of Indigenous justice law in the justice system?
- Do you agree with the current approach of the courts in recognising Indigenous law in criminal sentencing of offenders? Provide reasons for your answer, commenting in particular on the case study.
- If you were the defendant, what kind of judicial officer and what system of justice would you prefer? Provide reasons for your answer
SOLUTION
1. Key features of the Indigenous justice systems operating in Australia
a) Elderly family members both male and female act as the judiciary.
b) The defender and offender are directly involved in the dispute resolution mechanism under the Indigenous justice system.
c) The verdict passed under Indigenous justice system is a result of a decision taken by mutual agreement of the entire community.
d) Creation of a cohesive system under which offenders are punished in the presence of their community. This could be done on purpose to maintain order, make the offenders feel alienated and reduce the acts of crime in the society.
e) Indigenous justice system is primarily an arbitrary mechanism used to resolve disputes.
f) Indigenous justice system does not differentiate between civil law and criminal law in a way that general justice system does. Under the Indigenous justice system the distinction is given as Public wrongs (Breaches of sacred law, incest, sacrilege) and Private wrongs (Homicide, wounding and adultery).
g) The methodology of dispute resolution differs in both Public and Private Wrongs. In case of Public wrongs, senior people in the community make the decision whereas in case of Private wrongs the offender and offender’s kin is involved.
h) Under Indigenous justice system the proximate cause is considered as the ideal rule of thumb to pass the verdict. For instance, if the servant stumbles in the owners garden, due to recklessly placed grass cutting machine in the garden. The owner of the house will be liable to pay the penalty/face punishment.
i) One of the significant features of the Aboriginal justice system is that it works on the fundamental principle about maintenance of law and re-establishing the condition of the injured party to the position before the injury occurred due to the offender.
2. Difference between the features of Indigenous and General Justice System
|
Sr.No. |
Features of Indigenous Justice System | Features of General Justice System |
|
1 |
Active involvement of family members of the injured person and offender in the process of reaching a judgment against the offender. | Family members are not involved. The decision is made by the legal judiciary that is said to be neutral due to no kinship with the offender and defendant |
|
2 |
Two legal systems recognized by the Indigenous Justice system are a) Public Wrong and b) Private Wrong. | General Justice system classifies two legal systems 1) Criminal law and 2) Civil law |
|
3 |
The main objective on which the Indigenous Justice system functions is indemnifying the injured party. | The main objective of General Justice System is to make a fair judgment which may be even against the defendant at times. |
|
4 |
Cause-Effect relationship is more important under Indigenous justice system than any other factor. | Giving a fair and judicious verdict on the basis of available evidence, similar cases and their trial results in the past and the legislation is the most important factor. |
|
Sr.No. |
Features of Indigenous Justice System | Features of General Justice System |
|
5 |
The methodology of dispute resolution differs in the two legal systems a) Public Wrong and b) Private Wrong. | The methodology of dispute resolution is the same under General justice system, which is a fair trial. A family court could be used as the venue for the trial in some civil cases which are about family problems. |
|
6 |
Indigenous Justice system is primarily an arbitrary system where indemnification of the injured person is the expected result. | General Justice system is primarily a fair trial system which involves the Judge, the Jury, and the defendants and offenders lawyer. All of them are unrelated to the defendant and offender. |
3. Positive and Negative aspects to official recognition of Indigenous justice law in the justice system
a) Positive Aspects
- Family involvement in mutual agreement to a judgment makes the process more rational.
- The simple classification of the Indigenous legal system as Public Wrong and Private Wrong can be better understood by a lay person. Thus it is easier to follow the law by being aware about it.
- Being an arbitrary system which is more about arriving at a compromise solution it is more appealing to all the parties namely the defendant offender and their families.
b) Negative Aspects
- The system works on the cause-effect relationship meaning the reason for the injury of the injured person and its impact on the injured person. This is not very fair considering the reason for injury cannot be solely based on one factor.
- Some of the punishments under Indigenous legal system could be very harsh such as throwing a spear to hurt the offender’s thigh and humiliating the offender amidst the community/family members. The consequence of these harsh punishments may not really resolve the damage.
- Due to family involvement in the Indigenous legal system to reach a consensus about the offender, personal bias could result into a wrong judgment.
4. Do you agree with current approach of the courts in recognizing Indigenous law in criminal sentencing of offenders?
No, I do not agree with current approach of the courts in recognizing Indigenous law in criminal sentencing of offenders.
My reasons:
- Firstly, I do not think that it makes legal sense to punish the accused for the second time when the accused is already punished once under the Indigenous law system.
- Secondly, passing a judgment and punishing the accused under the Indigenous law does not seem right. If at all it makes legal sense to punish the offender for the second time, a fair trial under civil/criminal law of the general justice system should be considered.
5. Your preferred kind of judicial officer and justice system, if you were the defendant
My preferred kind of judicial officer and justice system, if I were the defendant would be a defendant lawyer and the General Justice system.
My reasons:
- The General Justice system is based on facts and only facts which are analyzed, researched and re-analyzed when similar criminal activities from the past take place in the contemporary scenario.
- A thorough research is conducted to understand the exact situation of the offender and the victim. The case is seen from all possible points of view and it is strongly believed that there is a motive behind the crime.
- Neither the offender not the victim is seen with a view of sympathy/personal bias by both the criminal and victim lawyers. This is because under the general justice system the lawyers only consider concrete evidence to act for/against the criminal/victim.
- Contrary to the above mentioned scenario, firstly under the indigenous legal system with a complete involvement of the victim’s family to reach a consensus on whether or not the accused is guilty does not seem to be a fair way of dealing with the case.
- In addition to this, the indigenous legal system works similar to an arbitrary system where the objective is conflict resolution. It makes more legal sense to work on a fair and judicious judgment rather than resolving the conflict on a superficial level. The decisions taken under the indigenous legal system could be more favorable to the community as a whole and may not be fair to the victim and offender individually.
References
- Australian Law Reform Commission (ALRC), ‘Traditional Aboriginal Society and Its Law’ in Edwards WH (ed), Traditional Aboriginal Society (Melbourne: MacMillan, 2nd ed., 1998) 217.
- Debelle B, ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M & Rigney D (eds), Indigenous Australians and the Law (Sydney: Cavendish, 1997) 81–82.
- Berndt RM & Berndt CH, The World of the First Australians: Aboriginal traditional life past and present (Canberra: Aboriginal Studies Press, 4th ed.,1988) 336.
- Debelle B, ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M & Rigney D (eds), Indigenous Australians and the Law (Sydney: Cavendish, 1997) 82; ALRC, ‘Traditional Aboriginal Society and Its Law’ in Edwards WH (ed), Traditional Aboriginal Society (Melbourne: MacMillan, 2nd ed., 1998) 217.
- Toohey J, Understanding Aboriginal Law (1999) 32 in Toohey J, Aboriginal Customary Laws Reference – An Overview, Law Reform Commission of Western Australia (LRCWA), Project No 94, Background Paper No 5 (September 2004).
- Maddock K, ‘Aboriginal Customary Law’ in Hanks P & Keon-Cohen B (eds), Aborigines and the Law (Sydney: Allen and Unwin, 1984) 219.
JH97
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