AUSTRALIAN LAW AND SOCIETY

QUESTION

Essay Topic 1: Australian Law and Society

Question:

The Commonwealth and State/Territory governments have been attempting to create equality in the legal system in relation to the indigenous population. Yet the prison population has an over representation of Indigenous inmates. Discuss this with reference to substantive Australian law (e.g. family law, criminal law or employment law).

You must include in your references:

a.         Primary Australian legal materials (e.g. case law and legislation); AND

b.        Secondary Australian materials (e.g. law journal articles, law textbooks, law reform commission papers, etc).

You must use the Australian Guide to Legal Citation (AGLC) as the referencing format.

SOLUTION

Introduction

Law reflects the society and it is made to administer and foster law and order in the society. In Australia aboriginal population has a high crime rate and constitute a major part of the prison population. When Australia was a British colony then there was strict application of British laws even on the indigenous population. With time things have started changing slowly and customary laws of the aboriginal have started getting recognized through judicial pronouncements, laws etc. If we go by the data then in the year 1965 indigenous people constituted 24 percent of the prison population in Western Australia and this figure was 14 percent in South Australia.[1] The prison population of indigenous people is higher by 16 percent than that of the non indigenous people. In the year 1984 the indigenous constituted 10.5 percent of the prison population which is still a grave figure. This over representation of indigenous people in the prisons could be because of several factors like cultural clashes, socio economic conditions and colonialism. They do not get enough representation as victims and even as accused. The laws are made for the people but there is no enough recognition provided to these people in the various laws of the States of Australia. In the areas of family law some recognition has now been provided and these have been given some rights. Traditional marriages are now recognized in some States and even adoption of kids as well as maintenance is allowed.  Criminal law is same for all and there is no difference for anybody though courts have started giving some consideration to the customary laws of indigenous people.  In matters of employments worker’s compensation benefits are applicable to them completely. The relation of customary laws with the general laws deserves a special reading and hence is dealt with in greater detail below. We will see how general laws have been modified to accommodate to the needs of the indigenous people.

Family law and Aboriginals

Traditional marriages of aboriginal people are not yet granted legal status in most of the states. In the Northern Territory and Victoria Traditional marriages of indigenous people have been granted legal status and legislations have been passed to this effect. The legislation states that if an aboriginal enters into a relation with another aboriginal and if that relation is considered as a marriage by the community to which either of them belongs then their relationship will be considered as a proper marriage.  It is also stated with respect to adoption that an order of adoption is possible in case of a person whose relationship with his/her partner is recognized as a traditional marriage for at least two years by the community to which these aboriginal people belong to. Other than these States the position in other states of Australia is still the same. People who are married in the traditional ways are required to be granted the same legal status as is granted to the people married under the Marriage Act 1961(Cth) and should be allowed to adopt children. This non recognition of their marriages and their family structure is having a severe impact on the integrity of these indigenous people. The adoption laws and policies are not considered in the mainstream law thus leading to higher number of cases of these indigenous children in non parental care leading to the sociological, economical and environmental deterioration of these children and then finally turning them into criminals. It is high time that the indigenous customs are given proper recognition and they be given a proper place in the law rather than ignoring them and their rights and adding more criminals to the society every day. Section 72 of the Family Act 1975 (Cth) deals with the maintenance issues between the parties to marriage and states that a party is supposed to maintain the opposite party to the level that can be achieved reasonably in the conditions that the opposite party has a child to care for who is below 18 years of age, secondly, the opposite party is not physically or mentally fit to be employed or for any other adequate reason. Other than these parents are obliged to maintain their children who are below 18 years of age.[2] As the marriages performed traditionally by the indigenous people are not granted legal status thus their companionship is treated as a de facto relationship for the matters of property of maintenance issues. Maintenance in de facto relationships in limited situations is recognized only in the New South Wales and Tasmania.  A woman is enabled to obtain a maintenance order from the court if she cohabited with a man for a period of at least 12 months and that man deserts her or has created any other situation like cruelty or misconduct that she can no more reasonably be with him.[3] In New South Wales a court has the power to issue a maintenance order for person who is in a de facto relationship and is not in a position to support himself in a proper way because of either a child who is below 12 years of age or below 16 years of age in case the child is physically or mentally retarded. Support to the partner and or child has thus been recognized under the laws of these two states. Thus except in Tasmania and New South Wales traditionally married people are not obliged to maintain each other but children of such marriages are obliged to be maintained in all states and territories. Keeping in mind the welfare of children and giving it the paramount importance children of all marriages are obliged to be maintained in all states and territories. Northern Territory have recognized the intestacy legislation and the Family Provision Act of Northern Territory states that the entitlements are extended to the traditional spouse in the same way as if the person was married under the Marriage Act 1961(Cth).

Employment laws and Aboriginals

Dependents of traditionally married people are entitled to all the benefits under the Worker’s Compensation Act. These benefits provide a lot of security to the aboriginal dependent and denying these benefits can be a very cruel act of the society and law. These benefits are a crucial part for any worker and shift the burden to take care of the dependents on the State. Entitling provisions are different from State to State and certain issues like imposition of a time limit which is unnecessary and in matters where there are many number of wives position is not very clear. In the Commonwealth Government Employees Act of 1971 a similar understanding has been devised and it provides that for the purposes of compensation dependents includes a woman who was residing with the employee for three years prior to his death even though that woman was not legally married to him but lived like a wife on a permanent and domestic basis. It extends the compensation benefits to the aboriginal wife who was married to the person in a traditional way. Under this Act the definition of spouse in relation to an indigenous person as a person who is considered by the prevailing customs of the aboriginal as husband and wife to which the person belongs. The definition of spouse includes the de facto relationship between the aboriginal partners.

Superannuation schemes are different in different Australian States thus making it difficult to devise a clear picture of the superannuation benefits to the people in de facto relationships. The numbers of indigenous people making contributions to superannuation schemes are very less. De facto widow is commonly paid superannuation benefits than the de facto widower. It is not a big question now and there are no provisions in the law as already stated because number of aboriginals contributing to such superannuation schemes is very less but in future there may be a need to address this issue.

Criminal Law and Aboriginals

The criminal law of Australia is as applicable on Aboriginals as on any other person of the society. Though they have started getting some recognition in the recent times, it is not yet different for them and their failure to understand the law might be one of the reasons for their high prison population.  The House of Lords in Director of Public Prosecutions V Camplin[4] held that it is important to consider to what color or ethnic group the accused belonged as what might provoke a person of one ethnic group might not provoke the person of other ethnic group. This position was contrary to the position taken by House of Lords in Bedder’s case[5] wherein provocation for a normal reasonable person was consideed to be enough provocation and the community of the defendant was not given any importance while considering the matter. Thus in this case the test of provocation was refined by the House of Lords and has started considering culture and ethnic origin in deciding the case. The Camplin case has established a new principle to determine provocation. In R V Dutton [6] the South Australian Court gave preference to the Camplin judgment over Bedder judgment. These recent judgment now represents the law.

The way of life of indigenous people is different from the other normal people and what might be considered as an offence under their customary law may not be unlawful under the general law and vice versa. Sometimes the act may be punishable under both the customary laws as well as general laws and in those situations the person is punished twice for the same offence which further aggravates the problem.

While considering the sentence it is important to give relevance to the customary law and culture. In R v Davey the offender thought that to get rid of an evil spirit the only way is to set the house on fire, keeping the culture in mind the South Australian Supreme Court showed some leniency in the matter. In Daniel v Belton[7] the indigenous resident of Roper River was the appellant in the case and he was charged with insufficient lawful means to support. The question that was raised in the case was as to what was the proper standard to assess as to whether the means to support were sufficient or not.  It was held that the law is same for all whether white or an indigenous person and there can be no exemption to exempt one person from the same offence on the ground that actual standard of living and means of support should be considered as the standard. If this standard will not be applied then aboriginals will keep committing the offences as they are living on those conditions which for another normal person would mean insufficient means to support. The conviction was quashed as the defendants means of support were some money, lilies of the lagoons and some wild turkeys and the help rendered by some family members and friends. The test of actual standard of living was applied and the means with the defendant were enough to provide him with a reasonably good life.

Conclusion

The prison rate is higher for the indigenous people may be because there is a clash between the general law and their traditional culture. Aboriginal people as they do not understand the general law get caught and because of inadequate representation are usually found in the prison. Laws have been modified to some extent but not fully so to reduce the number o indigenous inmates in jails it is very important that a correlation is set between their customary laws and the general laws. Law can be applicable when one is aware as to what it is because after awareness the factor of mens rea will come into picture. When a person is aware of his acts to be wrong then he is an offendor.
 

Bibliography

Articles/Books/Reports

1. Behrandt, L Achieving Social Justice: Indigenous Rights and Australia’s Future (2003)
2. Bradford M & Woodman, G indigenous law and the state (1988)
3. Povinelli, E The Cunning of Recognition: Real Being and Aboriginal Recognition in Settle Australia  (1998) Australian Feminist Law Journal (special issue), v. 11,
4. Howe, A 2009. R v Wunungmurra: ‘culture’ as usual in the courts. Australian feminist law journal 30: 163-169
5. Australian Law Reform Commission (1986) The Recognition of Aboriginal Customary Laws Report 31
6. Australian Bureau of Statistics (2008). Prisoners in Australia, December 2008. ABS cat.no. 4517.0. Canberra: ABS

Cases

1. Public Prosecutions V Camplin (1978) AC 705
2. R V Dutton(1979) 21 SASR 356
3. Daniel v Belton(1968) 12 FLR 101

Legislation

1. Marriage Act 1961(Cth)
2. Family Act 1975 (Cth)
3. The Maintenance Act 1967 (Tas)
4. Commonwealth Government Employees Act 1971 (Cth)

Other

http://www.alrc.gov.au/publications/

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[1] E Eggleston, Fear, Favour or Affection, ANU Press, Canberra, 1976, 15.

 

 

[2] Section 73 of the Family Act 1975 (Cth).

[3] The Maintenance Act 1967 (Tas) s 16.

[4] (1978)AC 705.

[5] (1954) 2 All ER 801.

[6] (1979) 21 SASR 356.

[7] (1968) 12 FLR 101.

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