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Aboriginal People

11. Aboriginal People

FootnoteThe term Aboriginal is used in this bench book to refer to a person of Aboriginal descent who identifies as Aboriginal and is accepted as such by the community in which he or she lives. Although it is acknowledged that the Indigenous inhabitants resident in Western Australia descend from many hundreds of distinct and diverse cultural groups, the term Aboriginal is used following the recommendation of the Aboriginal advisers for the Aboriginal Benchbook for Western Australian Courts (Fryer-Smith S, Aboriginal Benchbook for Western Australian Courts (Australasian Institute of Judicial Administration, 2nd ed, 2008) Note to Chapter 1. Many Aboriginal people coming into contact with the courts and the justice system suffer from a variety of social and economic disadvantages including low income, substance abuse, homelessness, semi-itinerant lifestyles, family disruption as a result of government policies such as those resulting in the Stolen Generations, intergenerational trauma and poor education and health. All of these factors create barriers to full participation in non-Indigenous society.

Research to identify and analyse the legal needs of Indigenous communities in non-criminal areas of law was conducted in Western Australia in 2012-2014. FootnoteThe Indigenous Legal Needs Project in Western Australia was part of a national project, and is reported by Allison F, Schwartz M & Cunneen C, The civil and family law needs of Indigenous people in WA (Indigenous Legal Needs Project WA Report) (2014) 10 (accessed 29 September 2017). It found that there was a significant need amongst Aboriginal people for assistance with legal problems or disputes in a large range of areas (in order of priority):

That research also highlighted the complex interplay between civil, family and criminal law problems. It uncovered instances of lateral escalation, where an unresolved civil law issue created further civil law issues, leading to a complex of legal needs that are, at least in part, created through the failure to address initial legal concerns. For instance, eviction as a tenant or discrimination in accessing private tenancies can create overcrowding in Aboriginal households, which might then result in child removal and neighbourhood disputes. FootnoteAllison F, Schwartz M & Cunneen C, The civil and family law needs of Indigenous people in WA (Indigenous Legal Needs Project WA Report) (2014) 10 (accessed 29 September 2017).

Further, when civil law issues are left unaddressed or unresolved, the situation sometimes deteriorates to also involve criminal law issues. This is evident in areas such as social security and discrimination, for example. FootnoteAllison F, Schwartz M & Cunneen C, The civil and family law needs of Indigenous people in WA (Indigenous Legal Needs Project WA Report) (2014) 16, 34 (accessed 29 September 2017). The opposite can also be the case: criminal law issues, including family violence, can give rise to civil law needs. An examples is that where family conflict and violence is present removal of children might follow and/or debt may be incurred as the result of damage caused to a tenant’s home by that family violence. FootnoteAllison F, Schwartz M & Cunneen C, The civil and family law needs of Indigenous people in WA (Indigenous Legal Needs Project WA Report) (2014) 16 (accessed 29 September 2017).

While the Indigenous Legal Needs Project highlighted the lack of access to the non-criminal areas of law by Aboriginal people in Western Australia, statistics also show that Aboriginal people continue to be grossly over-represented in many aspects of the criminal justice system, including Western Australia’s prisons and juvenile detention facilities. FootnoteSee section 11.2.

In response to the grave concerns held by the judiciary about the continuing over-representation of Aboriginal people in Australian criminal justice systems, the Australasian Institute of Judicial Administration commissioned the development of an Aboriginal Benchbook for Western Australian Courts (Aboriginal Benchbook). That was first published in 2002, and a second edition was published in 2008. FootnoteFryer-Smith S, Aboriginal Benchbook for Western Australian Courts (Australasian Institute of Judicial Administration, 2nd ed, 2008).

When this Bench Book was first published in 2009 it did not seek to address the issues which, at that time, had been so comprehensively addressed in the revised Aboriginal Benchbook. Instead, the focus of the original chapter 11 was on references to further information and reading, which the Steering Committee hoped would be of assistance to judicial officers and complement the detailed material already available in the Aboriginal Benchbook

Unfortunately, however, the second edition of the Aboriginal Benchbook can no longer be relied upon as a primary resource in this area given that it has not been updated since 2008.  As an interim arrangement this revised edition of chapter 11 on Aboriginal people has been published following a limited review. In the longer term a committee of relevant stakeholders will be convened to oversee the development of much more detailed chapter on Aboriginal people, corresponding to other chapters in this Bench Book.

The Steering Committee which had oversight of the development of the second edition of this Bench Book would like to acknowledge the submissions and contributions of the following organisations which have assisted in the preliminary revision of this chapter:


Last updated: 7-Nov-2017

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