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CULTURE IN THE CONTEXT OF SUMMARY JUSTICE AND
SENTENCING
Christine Haskett *
The system of law in New South Wales, as for other Australian States, is based on that
of the English common law.
Existing English legal institutions were transported to the
colony of New South Wales at the time of colonisation
and the offices established to deal with criminal matters
reflected those in use within the English legal system
such as Justices of the Peace and Stipendiary
Magistrates.
The transportation of English law to the colony of New
South Wales came about because New South Wales
was, in legal theory, a 'settled' colony. It was a wellestablished
doctrine of English law at that time, that the
law that existed in England at the time of settlement of a
new colony, which was 'applicable and appropriate' to its
circumstances, would be the received law of that colony.
This doctrine of received law of course presupposes that up until the time of their
settlement, Australian States had the same legal history as Britain. There was no
thought or consideration that the Aboriginal people of Australia might have had laws,
which were displaced by the actions and decisions of the white settlers.
While the idea that English law was received, so far as was 'applicable and appropriate',
suggests the possibility of adapting English law to local circumstances the English
common law tradition is non-specific in terms of cultural identification and it is not taken
into account in Court. That is largely the way it has remained in New South Wales
today.
Equality before the law is a fundamental concept of our legal system and all judicial
officers take an oath to administer the law without fear, favour, affection or ill-will. But it
does not necessarily mean 'same treatment'. As His Honour, Justice McHugh explained
in Waters v Public Transport Corporation (1991) 173 CLR 349 at 402,
"Discrimination can arise just as readily from an act which treats as equals
those who are different as it can from an act which treats differently
persons whose circumstance are not materially different."
In terms of the way the Courts have dealt with Aboriginal culture, early legal decisions in
the colony of New South Wales reveal ambiguities in the laws attitude to Aboriginal
persons - questions such as to what extent should Aboriginal people receive the
protection of British law or to what extent traditional customary law should be recognised
and acknowledged were certainly debated. However, it's fair to say that even from the
early days of the colony, Aboriginal personas appeared much more often as defendants
than as the beneficiaries of English law.
Over-representation of Aboriginal people in the criminal justice system, and more
particularly in our prisons in New South Wales is a recognised fact, as it is for the other
Australian States.
The Government, at both State and Federal level, has undertaken to improve this
situation and part and parcel of any serious attempt to do so is to recognise that
traditional sentencing processes may not always deliver the best outcome for the
community, including Aboriginal victims and defendants.
To that end, the Local Court of New South Wales in recent years has introduced a
number of diversionary programmes and intervention models in an attempt to look
outside the traditional sentencing and justice models for alternative sentencing options.
A programme that has been introduced particularly to address issues of Aboriginal
justice is Circle Sentencing.
Circle Sentencing
Circle Sentencing is a concept that originated in Canada.
Following its success in Canada, judicial officers in New South Wales showed an
interest in the possible adaptation of the Canadian model for use with Australian
Aboriginal communities. It was introduced in New South Wales on a trial basis in2000
and has since been expanded so as to operate in nine locations (one of which is located
in Sydney itself).
The fundamental premise underlying the philosophy of Circle Sentencing is that the
community holds the key to changing attitudes and providing solutions.
Circle Sentencing is an alternative sentencing court for adult Aboriginal Offenders.
Based on traditional indigenous forms of dispute resolution and customary law, Circle
Courts are designed for more serious repeat Aboriginal offenders. They aim to achieve
full community involvement in the sentencing process.
The category of offences that are eligible for Circle Sentencing has been kept as broad
as possible. An offence is eligible if it can be finalised in a Local Court, carries a term of
imprisonment, and a term of imprisonment is judged by the Magistrate as a likely
outcome. Strictly indictable offences, sex offences or strictly indictable drug offences are
ineligible. So offenders who have been charged with eligible offence, may, on entering a
plea of Guilty or after a finding of guilt, make application for the matter to proceed by way
of Circle Sentencing.
The process during the Circle is a lengthy one. During the Circle discussion, all
participants are provided with the opportunity to speak. Members of the Circle include
Aboriginal Elders from the community, the Magistrate, the defendant and victim.
Statements will be made by the defendant about the offence and his or her commitment
to rehabilitation, by the victim or a representative of the victim regarding the impact of
the offence. The discussion can cover the offence, its impact on the victim and
community, what needs to be done to right the wrong (what sentence should be
imposed) and what support may be available for the defendant and victim. The Circle
will try to achieve a consensus on the outcome.
The Magistrate will outline the sentencing alternatives available and ensure that the
sentence imposed by the Circle is within current sentencing guidelines.
Some of the aims of the Circle sentencing include:
• involving members of Aboriginal communities in the sentencing process,
• increasing the confidence of Aboriginal communities in the sentencing process,
• reducing barriers between Aboriginal communities and the Courts,
• providing more appropriate sentencing options for Aboriginal offenders,
• providing effective support to victims of offences by Aboriginal offenders,
• greater participation of Aboriginal offenders and the victims in the sentencing
process,
• raising awareness of the consequences of offences on victims and
communities,
• reducing recidivism, or habitual relapse into crime, in Aboriginal communities.
Circle Sentencing is a radical departure from the traditional court sentencing process.
Evaluations of Circle Sentencing have been positive, with it being viewed as a genuine
partnership between the Court and the Aboriginal community.
Over 80 Circle Sentencing Conferences have been held to the end of 2005. Early
evidence is that many offenders who participate make dramatic changes to their life and
their offending is much reduced. A comprehensive evaluation is being conducted from
late 2005 to the end of 2006 to measure the programme's impacts and outcomes.
Consideration will then be given to expand Circle Sentencing to other sites across New
South Wales.
In addition to the interaction with the Aboriginal community, the legal system operates in
what has become a culturally and linguistically diverse modern Australia.
Amongst the resources available to the Court (through the Community Relations
Commission) are interpreting and translating services in over 77 languages and dialects.
They greatly assist in the numerous instances each day that people from a non-English
speaking background appear in Court.
It must also be recognised that there are inherent limitations to the way in which we can
embrace cultural difference to the extent that it becomes legal difference.
Whilst 'Multicultural' is a term used in Australia to describe the cultural and linguistic
diversity of Australian society, the Australian Government's current multicultural policy
statement, whilst committing to recognising and respecting our cultural diversity, is
nevertheless based on premises such as:
• all Australians should have an overriding and unifying commitment to Australia,
first and foremost
• all Australians are required to accept the basic structure and principles of
Australian society - the Constitution and the rule of law, Parliamentary
democracy, freedom of speech and religion, English as the national language
and equality of the sexes, and
• that the right to express one's own culture and beliefs involves a reciprocal
responsibility to accept the right of others to express their views and values.
These premises reinforce that, notwithstanding our willingness to embrace cultural
diversity and acknowledge we live in a system with many beliefs, we have only one legal
system.
Our legal tradition embodies many of the freedoms and protections of individual rights
our citizens hold dear, such as the rule of law and trial by jury. Indeed one of the many
benefits that an individual finds when arriving in Australia, is the protection of the law.
Our legal system will always have difficulty adapting perfectly to the extent it is
necessary to do justice for individuals in every case, whether it be on the basis of
Culture or otherwise, because a continuing tension of our legal system has always been
that we rely on it to provide some measure of certainty to the community about their
rights and responsibilities as citizens.
___________
* Christine Haskett, Magistrate, New South Wales, Australia
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