Families Impacted by the Criminal Justice System on the Frontier: A New Model Required

Abstract

The article examines some of the systemic issues which adversely affect access to justice by Aboriginal people in the East Kimberley. The author contends that little or no adjustment is made in law, policy or service delivery to take account of the circumstances of aboriginal people in the region. The high rate of recidivism and rate of aboriginal imprisonment suggest the current model has failed. The author analysizes why the model has failed and proposes solutions. The paper was originally delivered to the 29th Annual ANZAPPL Congress in November 2009 when the author was the resident magistrate in the East Kimberley.

Key words:

• Aboriginal imprisonment
• family violence
• fetal alcohol spectrum disorder (FASD)
• juvenile offending
• Magistrates Court
• systemic injustice
• traffic offences

Notes

 1. Reference to Sergeant Buckland's evidence to the Wood Royal Commission in 1927, quoted by Neville Green, The Forrest River Massacres (2nd edn, Focus Education Series, Cottesloe, WA 2008) 197.

 2. Annual Report, Protector of Aborigines, 1909, quoted by Green, ibid, 72 (emphasis added).

 3. Department of Corrective Services, < http://www.correctiveservices.wa.gov.au/ _news/Details.aspx?id=615> accessed 26 November 2009.

 4. Heather Nancarrow, ‘In Search of Justice for Domestic and Family Violence; Indigenous and Non-Indigenous Australian Women's Perspectives’ (2006) 10(4) Theoretical Criminology 87, 97.

 5. Hannah McGlade, ‘Aboriginal Women and Violence, Time for a New Direction?’, paper delivered to Judicial Seminar (WA) 11 May 2009, 12.

 6. Note McGlade explores two Aboriginal Canadian justice models, the Community Holistic Circle Healing programme of Hollow Water and the Aboriginal Healing Lodges that incorporates Aboriginal culture and healing in community-controlled correctional facilities, as examples that Australia may aspire to when addressing sexual assault and other forms of violence against women and achieving effective rehabilitation of Aboriginal prisoners.

 7. Draft Convention on Justice and Support for Victims of Crime and Abuse of Power, Article 9, as at May 2006 prepared by the International Victimology Institute of the University of Tilburg, Netherlands and the World Society of Victimology, see http://www.tilburguniversity.net.intervict/undeclaration/convention.pdf, referred to in report of UN Commission on Crime Prevention and Criminal Justice, 16th Session, E/CN.15/2007/3 at p3, para 7(i), see http:documents-dds-ny.un.org/doc/UNDOC/GEN/VO7/805/39/pdf/VO78053. pdf?OpenElement.

 8. J Taylor, ‘Ord Stage II and the Socio-Economic Status of Indigenous People and the East Kimberley Region’, CAEPR Working Paper No 49/2008, Centre for Aboriginal Economic Policy Research, College of Arts and Social Sciences, ANU, 9.

 9. Ibid, 11.

10. WA Auditor General, ‘Performance Examination. The Juvenile Justice System: Dealing with Young People under the Young Offenders Act 1994’. Report No. 4, June 2008, 24–25.

11. Ibid, 24.

12. Ibid, 25.

13. “Fetal Alcohol Spectrum Disorder Model of Care” published by Department of Health, Government of Western Australia, 2010, 16.

14. Section 63.

15. The Act empowered the Commissioner of Police to create and maintain a Community Protection Register (“ANCOR register”) which lists those offenders convicted of specified offences against children and records specified information about each offender, Part 4 of the Act.

16. See long title of Act.

17. Community Protection Act, s. 63(2).

18. However, locally there is a planned pilot for mobile outreach in the West Kimberley starting in 2010.

19. The term “disqualification” will be used to include driving under suspension or cancellation pursuant to s 49 (3)(a),(b) and (c) of the Road Traffic Act 1974 (WA). The distinction is not significant for the purposes of the discussion.

20. The descriptor used by the Department of the Attorney General in its data collection.

21. Taylor (n 8). Figure is for 2006. See discussion on income distribution at 38.

22. See Sheiner v Roberts [2009] WASC 281 at [16], per McKechnie, J.

23. See Bacich v Illich [2000] WASCA 133 at [12] per Miller, J, quoting himself in Krakouer v Durka, unreported SCt of WA; Library No. 980595 where he said, “… the offence of driving whilst disqualified ordinarily warrants imprisonment, and where the offences are second or third, let alone a fifth offence it will be difficult to dispose of the matter otherwise than by a term of imprisonment”. See also Marshall v Spent (2000) 31 MVR 151, Anderson v Stilwell [2006] WASC 257, Arcari v Christie [2007] WASC 298.

24. Sentencing Act 1995, commenced 14 May 2004.

25. Statement attributed to Department of Corrective Services by Minister for Corrective Services and Attorney General, Hon. C. Porter to WA Magistrates Conference, 11 November 2009.

26. Derogatory term commonly used to refer to the driver of a motor vehicle which is driven in an anti-social manner, eg fast and/or dangerously.