Considering Aboriginality

Australian Courts Considering Aboriginality Case Summaries

Aboriginal Legal Service (NSW/ACT) has designed a database as an electronic catalogue of all decisions in criminal law from the superior courts of each Australian jurisdiction which have considered Aboriginality – that is, the factor of disadvantage experienced by a defendant due to their Aboriginality, the cultural practice of their community or Aboriginal customary law.

Included are cases in which some level of consideration by the court is given to one of these issues, and not only those in which it features in the actual outcome – the ‘ratio’– of the case. In taking this approach, the database intends to catalogue not just those cases which receive the most attention, but to include those that may be otherwise overlooked, yet still contain significant comment on the issue of Aboriginality.

For each decision identified, there is a short case summary, containing the basic, and expected, information, but with two additional features:

  • a brief discussion of why the factor of Aboriginality, cultural practice or customary law was relevant to the case and how it was considered by the court (even if not a part of the actual ratio of the decision)
  • a relevant (though short) passage or passages from the judgment – the actual words of the court– to readily inform and assist researchers and of course anyone interested in the subject.

These two components are the unique contribution of this database and will be of especial assistance to legal practitioners and community advocates working with Aboriginal and Torres Strait Islander people. Each case summary will also contain a hyperlink to the text of the judgment itself.

Aboriginal Legal Service (NSW/ACT) plans to extend the database in the future to include cases on children’s (care and protection) law, as this is a jurisdiction that increasingly demands the attention of all Aboriginal and Torres Strait Islander Legal Services.

Access the database

 

Background to the database

In 1836, Jack Congo Murrell appeared in the New South Wales Supreme Court, charged with the murder of ‘one of his own tribe’. (i) His lawyer, Sidney Stephen, challenged the jurisdiction of both the court and British law, which afforded Aboriginal people ‘no protection’, pointing out that:

This country was not originally desert…but was a country having a population which had manners and customs of their own, and we have come to reside among them. (ii)
The submission was referred to the Full Court, whose members at first reserved their decision to consider the argument -acknowledged by Chief Justice Forbes to be ‘ingenious’ – until finally rejecting it in a decision two months later. (iii)

In the two centuries that followed the establishment of British colonies, (non-Aboriginal) Australian courts rarely considered the Aboriginality of a defendant, their cultural practice or the customary law of their community as factors in their decisions. But in 1982, in Neal v The Queen (iv), the High Court acknowledged that in sentencing a person, it was ‘essential to the administration of justice’ to take into account all the material facts of a case, which here included the defendant’s Aboriginal background and his experience of disadvantage. A decade later, in R v Fernando (v), Wood J surveyed the available authorities, concluding that, in certain cases, consideration of this background could assist a court in explaining the commission of a particular offence and the circumstances relating to the offender – facts which existed ‘only by reason of’ their Aboriginality. (vi)

Over the past twenty years, Australian courts have increasingly turned their attention to this issue of a defendant’s Aboriginal background and what consideration should be given to their experience of disadvantage, or to the cultural practice or customary law of their community, as well as when it is appropriate to do so. And while the provisions of the Crimes Act 1914 (Cth) continue to preclude (vii) a consideration of cultural practice or customary law in bail and sentencing decisions in relation to the majority of Commonwealth offences, a practice of considering Aboriginality remains a critical element in the defence of Aboriginal people in the courts of all other Australian jurisdictions.

The purpose of this database is to assist this practice with a catalogue of these decisions, providing a collection of case summaries in an accessible electronic resource, publicly available to anyone working for, engaged with or interested in the rights of Aboriginal and Torres Strait Islander people. (viii) But it also seeks to promote an awareness and a critical discussion of another perspective that is available (ix) in seeking justice for Aboriginal people – who continue to be grossly overrepresented in figures for arrest, conviction and imprisonment – under the current Australian legal system. It is a lens through which it is recognised that Aboriginal people had, and continue to have, ‘manners and customs of their own’ long before non-Aboriginal Australia came ‘to reside among them’.
Progress

In 2009, ALS received a grant from the Commonwealth Attorney-General’s Department to commence work on the database. In 2010, ALS commissioned the Indigenous Law Centre at the University of New South Wales to conduct research and prepare summaries of cases on sentencing; and senior law students at the Centre under the supervision of Professor Megan Davis, Director of the Centre, have been working on this research stream during 2010 and 2011. In 2012, Macquarie University Law School also joined the project, through its Participation and Community Engagement (PACE) program, with senior law students working under the supervision of Deb Ronan, and the research direction of Ryan Harvey, researching cases on bail.
Future direction

Eventually, the database will include all available reported cases and will be regularly updated to maintain its currency. To achieve this, the project database will require support and assistance.

 

Get involved

Any person, agency or institution interested in participating in this project should contact us. Email info@alsnswact.org.au.

 

*This database is dedicated to the memory of Judge Bob Bellear.
Footnotes

(1) R v Murrell (1836) I Legge 72, 73; Murrell’s case is the first reported case in which an Aboriginal person appeared in a court established by the British colony charged with a criminal offence committed against another.
(ii) Murrell, n1, 72.
(iii) More extensive details on the case than are included in the Legge Reports, including extracts from Sydney newspapers of the time are collected at Decisions of the Superior Courts of New South Wales, 1788-1899, <www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1836/r_v_murrell_and_bummaree/>, viewed 4 June 2012.
(iv) Neal v The Queen (1982) 149 CLR 305.
(v) R v Fernando (1992) 76 A Crim R 58.
(vi) R v Fernando (1992) 76 A Crim R 58. Similarly, in its National Report, the Royal Commission into Aboriginal Deaths in Custody found that in the deaths under investigation, ‘facts associated in every case with their Aboriginality played a significant and in most cases dominant role in their being in custody and dying in custody’, Commonwealth, National Report, Royal Commission into Aboriginal Deaths in Custody (1991), (1.1.1).
(vii) In 2011, the Stronger Futures legislation amended the Commonwealth Crimes Act 1914 to allow the consideration of customary law or cultural practice, but only in the context of offences relating to cultural heritage. Under this Act, courts continue to be precluded from considering customary law or cultural practice in making decisions on bail and sentencing in relation to all other Commonwealth offences.
(viii) Eventually, the database should contain case summaries of all judgments from superior courts which considered the factor of Aboriginality. It will therefore be necessary to maintain the currency of the database each year.
(ix) In developing the Fernando principles, Wood J (as he then was) explained that for a court to consider a defendant’s background, their Aboriginality alone would be insufficient justification. It would be necessary to demonstrate that the defendant experienced disadvantage due to their Aboriginality. His Honour also stressed that consideration of a factor of Aboriginal disadvantage would not automatically apply in all cases in which the offender was Aboriginal, but only where consideration of their Aboriginality was relevant. Amagamula v Chambers [2007] NTSC 59 is an example of a case in which the court considered that in the circumstances, the Fernando principles did not apply.