Law & justice

When Aboriginal and Western laws collide

Aboriginal people following traditional law get caught in Western law, and some who do not fully understand the Western law system are making fateful decisions.

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Western law needs to consider Aboriginal laws

High Aboriginal prison rates might in part be based on a clash between Western law and traditional culture. Aboriginal people following traditional laws get caught in Western law, and some do not fully understand this law system in the first place and are making wrong decisions.

When Western courts decide what Aboriginal offenders must or must not do they often ignore or are unaware of Aboriginal law and customs. Sentences or bail conditions might be culturally inappropriate.

"The old men are angry"

Aboriginal men who still value the old traditional and ceremonial ways "are angry" because they see people going into gaol and then returning into their communities. Under traditional Aboriginal laws these people often wouldn't have been allowed back, they would have been expelled from their groups for what they did. Traditionally, if you were travelling on your own, everyone knew you had done something severely wrong. Spearing scars sometimes revealed this status.

For many old people it is hard to reconcile their view of traditional law with the rules of Western law.

Bail: Too little & not culturally appropriate

Among people on remand, 25% of adults and 45% of young people are Aboriginal.

In a major study the NSW Bureau of Crime Statistics and Research examined half a million bail decisions made in NSW between 2015 and 2019. It found that Aboriginal people facing criminal charges are 20.4% more likely to be refused bail by police than non-Aboriginal defendants in similar cases.

According to the study, police and the courts refuse bail more frequently for Aboriginal defendants who are adults, male and aged between 35 and 44 years. NSW police refuse bail in 13.8% of cases for all adults and in 22.7% of cases for juveniles. Among defendants who have already been denied bail by the police, the courts refuse bail to 45.3% of adults and 39.6% of juveniles.

It is possible that this disadvantage is contributing to Aboriginal peoples' over-representation in custody. While the study did not stipulate where the higher numbers come from, the NSW Aboriginal legal service alleged it was due to "systemic racism within NSW police".

Bail not always the best option

An Aboriginal woman stabbed her brother after he raped her in a town camp. The strict conditions of bail were that the woman had to return to her community and remain there until the trial.

But these bail conditions were culturally inappropriate because under traditional Aboriginal law the woman would have been punished with a customary beating because her female relatives would not accept the allegation of sibling rape.

In this case, the woman's caseworker managed to negotiate a more flexible and satisfactory bail condition.

Story: Jailed for true love

It was true love. Everybody agreed on that. The girl and the boy first met in 2006 at a sports weekend. She was 12 and he was 16.

Soon after they were married in the traditional Aboriginal way and began living as husband and wife in a remote outstation. The couple was in love and their families supported the relationship. Under the complex intermarriage rules Aboriginal people have abided by for centuries (involving your totem, skin name, subsection and moiety), it was a good match-up.

It all went awry when the Australian government intervened in the Northern Territory in 2007.

Five months after teams of soldiers and police entered remote communities, the boy impregnated the girl. By then he was 18 and she was 14. They had been living together for almost two years. The boy ended up in jail, while the girl gave birth to a boy.

Previously Northern Territory police would have turned a blind eye to the fact that the boy had sexual intercourse with an underage girl–an offence under NT law–because it was accepted and even encouraged in Aboriginal culture.

But the intervention now strictly enforced NT's laws because police were tasked with "hunting down pedophiles and stamping out the sexual abuse of Aboriginal children".

When the girl proudly named the boy as the father of her baby, he was charged. After months in jail he pleaded guilty in "a world with laws he didn't fully understand". He was facing a 16-year jail sentence.

The reality of what's happened [in the Northern Territory] is that such pedophiles have not being found. What, though, the police have come across are examples of basically young men having consensual sex with teenage girlfriends.

— Glen Dooley, principal lawyer for the Northern Territory's main Aboriginal legal aid agency

What if Aboriginal people judged white people?

The media is quick at reporting about Aboriginal people's conflicts with white law.

What would happen if they judged white people?

Germaine Greer puts it very well:

"Aboriginal people pass through our courts every day, but we have never allowed Aboriginal people to judge us. We hear every day of their crimes against our laws, but nothing of our crimes against theirs. As long as the Aboriginal silence is filled with whitefella noise the situation can only get worse."

Judgement by His Peers - Painting by Gordon Syron
What if a white person would be trialled by a black jury? In his painting Judgment by His Peers Aboriginal artist Gordon Syron reversed the usual situation of an exclusively white court judging a black person.

No more faith in Western law

Many Aboriginal people have lost their faith in the Western justice system. Older generations still remember the mission days when the sighting of any police vehicle meant their children were at danger of being taken away.

Today Aboriginal people are often angry because many months pass between a crime committed against them and police or court action as the following story shows.

Police inaction

When an Aboriginal man was attacked by three men and a woman in January 2010, police still hadn't laid any charges in April that year.

Aboriginal people believe that had the attackers been Aboriginal and the victim non-Aboriginal police would have acted swiftly. "If this was a non-Indigenous person off to the shops who was pulled up and bashed by three Aboriginal men and one Aboriginal woman, I am sure charges would have been laid and they would have been incarcerated," says Aboriginal academic Stephen Hagan.

Mark Copeland from the Catholic Social Justice Commission of the Diocese of Toowoomba agrees. "If it were four Murris [regional Aboriginal group of Queensland and north-west NSW] they would still be locked up because they would be seen as a risk to the community." Relations between Aboriginal people and police are often tense, and sometimes protests escalate when police intervenes too heavy-handedly.

Justice delayed is justice denied.

— Peter Pyke, former Queensland police officer

Police collude to protect their own

A magistrate judging the case of Mulrunji Doomadgee who died from injuries caused by a senior police officer, noted that police were colluding to protect one of their own and compromising proceedings. He suggested that officers gave tip offs and allowed the accused to come up with "innocent explanations" to counter damaging claims by witnesses.

But six police officers, criticised by Queensland's Crime and Misconduct Commission (CMC) over their roles in the Doomadgee investigation, were not disciplined more than six years after Mr Doomadgee had died. The CMC also labelled the investigation as "seriously flawed" and an internal police review as "discredited".

With all these things going on, often repeatedly, in Aboriginal families' lives, who cannot understand that they lose faith in Western law?

Poor policing and courtroom rules

Poor policing is a problem throughout Australia. Police culture is resistant to change and confession-led rather than forensically driven. CrimTrac, a national database for DNA profiles, was established in 2000 but not used or extended since. Laws making it illegal to routinely sample DNA do not help.

Robin Napper, who helped clear more than five people from wrongful convictions, found a "huge resentment from Australian police who want to keep their egos intact."

Dr Diana Eades, a university linguist, found that during courtroom hearings Aboriginal witnesses were subjected to bullying and shouting until they finally agreed to the propositions being put out to them. "Despite the obvious fact that the answers were given under great duress, and therefore not given freely, the legal process interpreted them literally," she notes.

Even if a witness repeatedly answers just "Yes" to a question, courtroom rules allow lawyers to replace this answer with the words from the question, and then report these as if they were the witness' own words.

Life is cheap in Australia. If the police haven't got a lead in a homicide after a couple of weeks and it's not a high-profile victim, then it's described as a missing person.

— Robin Napper, independent forensic investigator

Police seem to always get away

Aboriginal people are also losing faith in Australian police because it appears that members of the police force rarely face disciplinary action deemed appropriate for their offences.

When Aboriginal man Mulrunji Doomadgee died after a police officer 'fell' on him the case was investigated by two coroners, both of whom found flaws in the police handling the investigation. A report by the Crime and Misconduct Commission (CMC) recommended disciplinary action against the six officers involved.

But the Queensland Police Service found the officers had no case to answer and all that ensued was some "managerial advice". As a result the CMS could not take any further action.

The officer concerned has been tried and found innocent of the charges. That has seen due process. What must be tried is the process.

— Herbert Ewen Jones, Federal Member

Custody Notification Service (CNS)

Imagine you are arrested by police but no-one knows. What are your rights? Who lets your partner, your family know?

The Custody Notification Service (CNS) was set up in 1998 in New South Wales and the Australian Capital Territory as a response to a recommendation from the Royal Commission into Aboriginal Deaths in Custody whereby police must notify the Aboriginal Legal Service every time they detain or arrest an Aboriginal person, in order for that person to receive early legal advice and a welfare check.

“Often, people are not okay. Threats of self-harm or suicide are common,” says Phil Naden, CEO of the Aboriginal Legal Service.

The service operates 24 hours a day, 7 days a week and offers a phone line for police to ring a dedicated lawyer who will then do a welfare check and provide legal advice to the person in custody.

The CNC receives about 300 calls per week and there has been only one Aboriginal death in police custody in NSW and the ACT since the Custody Notification Service began.

Western Australia introduced a CNS in October 2019 – after "30 years of recommendations, five years of intense lobbying, three years of funding negotiations and two years of political promises."

Victoria introduced their CNS at the same time and requires police to contact the Victoria Aboriginal Legal Service within the hour of taking an Aboriginal person into custody for any reason.

The Northern Territory introduced the service in June 2019.

The video below, "CNS - who you gonna call?", was produced to draw attention to the Aboriginal Legal Service (NSW/ACT) CNS and how it helps Aboriginal people who have been taken into custody.

The CNS was funded by the Australian government until they pushed it as a state jurisdictional responsibility in June 2012. But the NSW government baulked and refused to fund the phone line despite the irony of it being the NSW government which legislated in the requirement for this phone service.

Aboriginal people in Queensland will always be skeptical of police... They were the people who removed our mothers and fathers. They will continue to be the bogeyman.

— Alf Lacey, Mayor, Palm Island

Western law and Aboriginal customs don't go along well

On the one hand side, courts need to understand the complexities of Aboriginal English. Some Aboriginal communities speak versions of English that are influenced by traditional Aboriginal languages and cultures, which academics call "Aboriginal English".

Aboriginal people in the witness box can make long, silent pauses, avoid eye contact or confirm leading questions from lawyers, all of which may make them an unreliable witness to a juror.

On the other hand, more than 90% of people in Arnhem Land, NT, could not answer basic legal questions and think Western society is "lawless". In some Aboriginal communities people are unaware that rape is considered illegal. 95% of Yolngu people could not explain the 30 most commonly used English legal terms, such as 'bail', 'commit', 'arrest' or even 'guilty'. Even 90% of community leaders, school teachers and council representatives had no understanding of these legal terms.

This might explain why in 2008 more than 80% of the Northern Territory prison population was Aboriginal. Many of them might be innocent because they didn't understand what 'guilty' meant.

"People thought that pleading guilty actually got them through the court quickly and they didn't go to jail," says Richard Trudgen, CEO of the Aboriginal Resource and Development Services.

"When they realised what the term guilty meant they were able to identify some of the things that they were convicted of that they never had anything to do with."

When asked about their lawyer helping them, many [Aboriginal people] were surprised to hear that this person was 'on their side'.

— Findings in the An Absence of Mutual Respect report

Another reason why Aboriginal people make 'false' statements in court is that they are hearing-impaired through a cycle of poor health.

There is a clear relationship between hearing loss and early Aboriginal justice problems —90% of Aboriginal inmates in Darwin Correctional Centre suffer from hearing loss.

Story: "I plead guilty"

An Aboriginal man, called to give evidence about a traffic accident he had seen, steps into the witness box and announces "I plead guilty".

This story was told by a Melbourne lawyer from his time working in an Aboriginal legal service in the Queensland bush.

Story: Not quite bailed out

"ARDS [Aboriginal Resource Development Services] was contacted by the family of a young Yolngu man. The family had reason to believe the young man was in Berrimah prison. This was confirmed and a visit arranged.

As a result... it became clear that a warrant for this man's arrest had been active for some time due to a breach of bail – he had failed to return to court. He came to the notice of police and they exercised the warrant.

His understanding of 'bail' was that he had been 'bailed out' of trouble and that was the end of the matter. He was adamant that he was not required to return to court. To make matters worse for him, when the police did exercise the arrest warrant, the Yolngu man, who felt that he was being very unfairly dealt with, resisted arrest and punched the police officer.

As a result, additional to the original charges, he now had some more charges, all due to serious communication failures between the courts and this Yolngu man."

The above example is quoted from Absence of Mutual Respect report (page 25), a report about Aboriginal people's difficulties in dealing with white courts.

These examples illustrate how critical advocacy and community legal education are.

Half the time our clients break the law because they don't understand it.

— Priscilla Collins, North Australian Aboriginal Justice Agency (NAAJA)


View article sources (20)

[1] 'A triumph against the odds', NIT 12/6/2008 p.29
[2] 'Aboriginal people found to be far more likely to be refused bail than others in NSW', The Guardian 23/3/2021
[3] 'No to violence', Koori Mail 444 p.21
[4] [4a] [4b] 'Lovers caught in clash between white man's law and traditional culture', SMH 14/9/2009 p.3
[5] 'The rage epidemic', SMH 2/8/2008
[6] [6a] 'Protest over Toowoomba man's death', Koori Mail 473 p.7
[7] 'Police 'colluded'', Koori Mail 476 p.1
[8] 'Palm Island police not disciplined', Koori Mail 480 p.3
[9] [9a] [9b] 'Clearing their names', SMH 5/6/2010
[10] [10a] 'How 'courtroom talk' disadvantages Aborigines', Koori Mail 435 p.30
[11] [11a] [11b] 'Fury over no action against Qld police', Koori Mail 497 p.5
[12] [12a] 'Funding cuts means more Aboriginal peoples incarcerated', The Stringer 9/5/2013
[13] 'Been arrested? RU OK?', Aboriginal Legal Service email, 13/9/2012
[14] [14a] 'Western Australia rolls out lifesaving hotline to address Indigenous deaths in custody', The Guardian 2/10/2019
[15] 'Custody battle', Inside Story 14/6/2019,
[16] 'Bowraville: How three families from a disadvantaged country town took on the state', SMH 28/5/2016
[17] [17a] [17b] 'Aboriginal people don't understand white law, report says', Koori Mail 427 p.49
[18] 'Injustices linked to poor hearing', Koori Mail 476 p.9
[19] 'Angels, demons and great sadness', NIT 155, 12/6/2008 p.24
[20] 'Confronting a justice system', NIT 13/11/2008 p.28

Cite this page

Korff, J 2021, When Aboriginal and Western laws collide, <>, retrieved 20 July 2024

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