First Nations people
In 2021, the estimated resident population of First Nations people in NSW was 292,100 (or 3.6%) of a total of 8.2 million residents of NSW. An estimated 33% of First Nations people in Australia live in NSW, the most populous State. The purpose of this chapter is to:
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identify and highlight the impact of colonisation including intergenerational/transgenerational trauma and historic disadvantage; highlight for judicial officers relevant information about the different values, cultures, lifestyles, socioeconomic disadvantage and/or potential barriers in relation to full and equitable participation in court proceedings for First Nations people in NSW; and
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provide guidance about how judicial officers may take account of this information in court — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive.
2.1 Some statistics
Unless otherwise stated, statistics are derived from 2021 national census data.
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Population:
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Language:
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The preamble to the Aboriginal Languages Act 2017 (commenced 5 March 2020) recognises that “the languages of the first peoples of the land comprising New South Wales are an integral part of the world’s oldest living culture and connect Aboriginal people to each other and to their land”.
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In the 2021 census, 1.9% of First Nations people in NSW reported speaking an Aboriginal or Torres Strait Islander language at home. Of the 5,196 people in NSW who used Aboriginal or Torres Strait Islander languages, the most common language was Wiradjuri (22.2%).[3]
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It is increasingly recognised that loss of language is a continuing negative aspect of the impact of colonisation. The Aboriginal Languages Trust was established in NSW in March 2020 under the Aboriginal Languages Act 2017 to increase the use of Aboriginal languages, support Aboriginal language groups and bring awareness of the contributions that languages bring to both First Nations people and NSW as a whole. See further at 2.2.4.
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Education:
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Retention of First Nations students to Year 12 steadily increased between 2011–2021, from 37.1% to 56.7% across Australia. In 2021, 54.1% of First Nations students in NSW aged 20–24 years had completed Year 12 or higher, compared with 36.7% in 2011.[4]
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One in 10 (10.2%) First Nations people aged 18–24 years were attending university or other higher education institutions in 2021, up from 6.6% in 2011.[5]
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In 2021, 2.7% of First Nations people aged 25 years and over were attending university or other higher education institutions, up from 2.2% in 2011.[6]
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Nationally, between 2008 and 2021, determining the annual change (using linear regression analysis) excluding the 2020 period, the proportion of First Nations students in Years 3 and 5 achieving the minimum reading standard increased by 18% (from 68% to 84%) and 23% (from 63% to 78%), respectively.[7] In 2021, the proportion of First Nations students at or above the national minimum standard for writing was highest for those in Year 3 (84%) and lowest for those in Year 9 (52%). The proportion of First Nations students in Year 9 (52%) meeting this benchmark was 14 percentage points lower than for those in Year 7 (65%), the largest difference between any two consecutive year groups.[8]
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Employment:
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In 2018–2019, around 49% of First Nations adults (15–64 years) were employed, compared with 76% of non-Indigenous Australians.[9]
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In 2018–2019, First Nations women were underrepresented in the Australian workforce (45% of all First Nations women were in the workforce compared with 54% of First Nations men).[10]
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In 2018–2019, the unemployment rate in NSW for First Nations and non-Indigenous people was 19% and 5% of the total labour force, respectively. Unemployment amongst First Nations people was highest for 18–24 year olds, at 24%.[11]
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In 2021, the median weekly household income for First Nations households in NSW was $860,[12] compared with $2,185 for non-Indigenous households (families).[13] Nationally, nearly one third (31.4%) of First Nations people were living below the poverty line in 2016,[14] and in 2019–2019 almost 2 in 5 (39%) First Nations people aged 15 and over reported that in the last 12 months their household had days without money for basic living expenses (up from 28% in 2014–2015).[15]
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Housing:
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In NSW in 2021, 45.5% of NSW First Nations residents were living in dwellings they owned (with 53.1% renting),[16] compared with 64% of the total NSW population (with 32.6% renting).[17] 11.8% of First Nations people were renting through a state housing authority.[18]
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In NSW in 2021, 87.5% of First Nations people were living in appropriately sized (not overcrowded) housing and 17% of First Nations households were living in dwellings that did not meet an acceptable standard (that is, at least one basic household facility was unavailable or there were more than two major structural problems).[19]
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In NSW in 2021, 90 per 10,000 First Nations people were experiencing homelessness, compared with 43 per 10,000 of the total NSW population. Across Australia, First Nations people represented one in five (20.4%) people experiencing homelessness.[20]
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Care and protection
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Between 1910 and 1969, official government policies moved from “protection”, which saw First Nations people placed in missions and reserves, to assimilation. These policies led to the forced removal of generations of First Nations children from their families. These children, known as the Stolen Generations, and their families inherited a legacy of trauma and loss documented in the 1997 Bringing them Home Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander children from their families.[21] See below at 2.2.2. It has been estimated that more than 6,200 First Nations children in NSW were removed in this period.[22]
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Stolen Generations survivors and their descendants carry higher levels of disadvantage compared to other First Nations peoples, who are already at a disadvantage in Australia. There is a “gap within the gap”. “[F]orced removal led to a cycle of poverty, ill-health, discrimination and incarceration. As a result, the Stolen Generations are one of the most disadvantaged groups with the broader Aboriginal and Torres Strait Islander population”.[23]
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In NSW as at 30 June 2020, First Nations children were placed in out-of-home care at 10 times the rate for non-Indigenous children (6,688 First Nations children out of 16,160 children). Nationally, as at 30 June 2020, 63% of First Nations children in out-of-home care were placed with relatives/kin, with other First Nations caregivers, or in Aboriginal residential care.[24] These informal arrangements do and will have multiple effects on the relative/kin caregivers, including financial, physical and mental health. The number of First Nations children in care is projected to increase by 54% by 2030 compared to an increase of 19% for non-Indigenous children.[25]
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Health:
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First Nations people are twice as likely to report their health as “fair” or “poor” than non-Indigenous people — 31% compared to 14%; with NSW having a higher proportion than Australia — 32% compared with 31%.[26]
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First Nations people in NSW are almost one-and-a-half times more likely to have a disability or long-term health condition than non-Indigenous people — 53% compared with 29%.
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About 6.6% of First Nations people in NSW need assistance with self-care, mobility or communication.[27]
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The leading causes of mortality and morbidity in First Nations people are coronary heart disease, anxiety disorders and diabetes, with coronary heart disease the leading disease outcome attributable to tobacco use.[28]
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There is increasing recognition of the impact of trans or intergenerational trauma on First Nations people as causative of poor physical and mental health outcomes. See 2.2.2 below.
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The life expectancy of First Nations males in NSW is 9.4 years less than the life expectancy of non-Indigenous males and 7.6 years less for females. In remote areas, life expectancy for First Nations men is 65.9 and women 69.6 years.[29]
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First Nations people are 10 times more likely to suffer hearing impairment than the general population, ie ear diseases and hearing loss.[30] In R v Russell (1995) 84 A Crim R 386 at 393, Kirby P noted that hearing loss is an endemic problem amongst First Nations people and noted the connection between hearing loss, being of First Nations descent and the criminal justice system.
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Between 2018 and 2020, First Nations infant mortality was 4.1 per 1,000 for First Nations infants, compared with 2.9 per 1,000 for non-Indigenous infants.[31]
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Violence:
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There is increasing recognition in the law and justice sector of the impact of trans/intergenerational trauma on First Nations people as causative of disproportionate interactions in the criminal justice system. See 2.2.2 below.
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Between 2017 and 2021, First Nations victims of assault increased in NSW (up 54% or 238 victims) to 4,512 victims.[32]
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In NSW in 2021, there were more female First Nations victims of assault than male victims; 2,865 females compared to 1,644 males.[33]
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First Nations women accounted for approximately 7.6% of all female homicide victims in NSW between 2014 and 2018. Just over three-fifths (8 of 13 female First Nations victims) of whom were killed by intimate partners,[34] compared with 44.1% (64 of 145 female victims) of non-Indigenous victims.[35]
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First Nations men are about 8 times more likely and First Nations women are 9 times more likely to be domestic assault offenders, than non-Indigenous men and women.[36]
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11% of alleged offenders of sexual assault and child sexual assault offences were Aboriginal or Torres Strait Islanders.[37]
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11.8% of all NSW sexual abuse victims below 15 were Aboriginal or Torres Strait Islanders.[38] First Nations children make up 4% of children in NSW.[39]
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The 2008 Wood Report noted that the “literature indicates that child sexual assault in Aboriginal communities is a complex problem that is interconnected with other aspects of Aboriginal disadvantage such as substance abuse, social and economic disadvantage, poor mental and physical health, and exposure to family violence”.[40] Trauma therapists and leading researchers such as Dr Jenny Atkinson et al consider that these indicia of First Nations disadvantage which manifest as inter or transgenerational trauma are symptoms of First Nations post-colonial history (see further 2.2.2).[41]
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First Nations women are almost five times more likely than non-Indigenous women to be victims of domestic assault (2,071 per 100,000 population compared to 434 per 100,000). First Nations male offending is almost eight times higher than non-Indigenous male offending (2,800 per 100,000 population compared to 359 per 100,000).[42]
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Prosecutions, bail and imprisonment:
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3.9% of First Nations people appearing before the NSW Local Court appear on at least one offensive language or behaviour charge[43] — this represents almost 35.6% of such charges.[44]
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Adult First Nations defendants are 20.4% more likely than non-Indigenous defendants to be refused bail by police.[45] First Nations defendants are also more likely to be refused bail due to already being in custody for a prior offence — 9% compared to 3% for non-Indigenous defendants. Yet 32.9% of First Nations people who were remanded in custody after their bail was refused do not receive custodial sentences.[46]
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In March 2022, First Nations young people made up 51.4% of young people in detention in NSW,[47] up from 39.7% in 2020.[48] First Nations people made up just 6% of the Australian population aged 10–17 in 2022.[49]
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In March 2022, First Nations women accounted for 37.5% of the adult female prison population in NSW. First Nations men accounted for 27.1% of the NSW adult male prison population.[50] Overall, First Nations people remain grossly over-represented in NSW prisons. The full-time First Nations prisoner population in March 2022 was 27.8% of the prison population.[51]
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Between 2008 and 2018, the First Nations imprisonment rate rose by 45% (nation-wide) compared to the non-Indigenous rate of a 29% increase. In NSW, the rate of First Nations imprisonment increased by 32% from approximately 1,600 First Nations persons per 100,000 to 2,137 First Nations persons per 100,000. This contrasts with a rate change of 162 to 184 for non-Indigenous persons per 100,000 for the same period.[52]
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In 2022, First Nations imprisonment rates in the Northern Territory (87%), Western Australia (40.2%) and Queensland (36.5%) were higher than NSW (29%). South Australia (24.4%), Victoria (10.6%), the ACT (25.2%) and Tasmania (22.7%) were lower.[53]
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First Nations women are the fastest growing prison population in Australia. The majority of the women (more than 80%) are mothers. Research indicates there is a cycle of trauma and incarceration relating to their own and their relatives’ experience of being removed from their families as children, as part of the Stolen Generations, pointing to ongoing intergenerational trauma.[54] Aboriginal women are more likely to be charged and imprisoned for minor offences than non-Aboriginal women. Consequently, Aboriginal women often cycle through the prison system on shorter sentences or remand (unsentenced) and experience multiple incarcerations.[55]
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There is a smaller reduction in crime for First Nations people (9.2%) than for non-Indigenous people (14.6%) associated with the Suspect Target Management Plan (STMP), a NSW Police Force initiative designed to reduce crime among high risk individuals through proactive policing. An evaluation of the STMP has suggested that the program may need to be modified for First Nations people, for example, with the inclusion of First Nations Elders in both the selection for, and application of the program.[56]
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2.2 Some general information[57]
2.2.1 Aboriginal people, Torres Strait Islander people, Kooris, Murris and other groups[58]
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Australia has two Indigenous peoples with separate ethnic and cultural identities — Aboriginal people and Torres Strait Islander people. Aboriginal and Torres Strait Islander people are also known as the First Nations people; a term that respectfully encompasses the diversity of Aboriginal and Torres Strait Islander cultures and identities.
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First Nations people identify as either Aboriginal or Torres Strait Islander. A small number of people in NSW identify as both Aboriginal and Torres Strait Islander. This is a cultural identity based on self-identification and acceptance as an Aboriginal/Torres Strait Islander person within the relevant First Nations community of origin.
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Many First Nations people in NSW have some non-Aboriginal/Torres Strait Islander ancestry.
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An increasing number of people who originally identified as non-Indigenous, or who were previously unaware of their First Nations ancestry, are proudly identifying as First Nations Australians, and being accepted by the relevant Aboriginal/Torres Strait Islander community as Aboriginal and/or Torres Strait Islander.
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It is deeply offensive to First Nations people to refer to them as half-caste or half-blood, full-caste or full-blood — see also 2.3.3.2.
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Most First Nations people in NSW are Aboriginal, speak English or a form of English (Aboriginal English).
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Many First nations people, including those who otherwise reside in urban centers, continue to acknowledge and observe traditional laws and customs, and undertake traditional activities.
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Many First Nations people who come from NSW call themselves “Kooris”. “Koori” means “man”, or “people” in many of the hundreds of languages originally spoken in NSW.
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Some First Nations people who come from NSW (largely those living near the Queensland border) call themselves “Murris”, as this is the name used by Indigenous people in Queensland.
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Some First Nations people from NSW and others from interstate call themselves other names.[59]
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ATSI (an acronym for Aboriginal or Torres Strait Islander people) is often used by government services. Many First Nations people find this acronym offensive, particularly when used orally — see also 2.3.3.2.
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Although most Aboriginal and Torres Strait Islander people in NSW live in mainstream urban or regional country town environments, many live within largely First Nations communities located within, near or on the edge of non-Indigenous settlements. Note that many First Nations people originally inhabited the areas that are now cities or townships, and were forcibly relocated to the fringes of these areas, often into “missions” — see 2.2.2 below. Any suggestion that urban dwelling First Nations people are somehow less Aboriginal than “traditional” Aboriginal people is offensive and unhelpful.
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In Love v Commonwealth of Australia [2020] HCA 3, the High Court held by majority in separate reasons that an Aboriginal Australian, despite their place of birth, cannot be considered an alien under s 51(xix) of the Constitution: at [81]; [284]; [398]; [458]. Edelman J reasoned that the powerful spiritual and cultural connection that Aboriginal people have with the land, and the “religious relationship” with the defined territory of Australia, can be an underlying basis for membership of political community independent of citizenship legislation: at [450], [466].
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In contested adoption proceedings, the NSW Court of Appeal held that an “Aboriginal child” for the purposes of the Adoption Act 2000 means a child descended from the people who lived in Australia before British colonisation. The court disapproved the decision Fischer v Thompson (Anonymised) [2019] NSWSC 773. See further 2.3.6 Adoption proceedings.
2.2.2 Intergenerational/transgenerational trauma
Understanding intergenerational and transgenerational trauma
Multiple government inquiries in the last three decades have acknowledged that the legacy of historic dispossession and dislocation from country, culture and family has had ongoing harmful physical, mental and socio-economic effects.[60] This legacy is increasingly acknowledged and characterised in medico-legal literature and government policy as inter or transgenerational trauma.
Trauma may be acquired or inherited cumulatively and transmitted by an individual and/or collectively by a group. Genetic, physiological, behavioural and psychological factors are considered when making a medical or psychological diagnosis of trauma.[61] The primary or distal cause of trauma for First Nations people was colonisation and attendant practices including massacres,[62] dislocation to stations and missions, government policies that forcibly removed children from their families, often into servitude and sexual abuse. Secondary to this have been the individual and collective losses of many First Nations people due to racism, prejudice, poverty and genetic poor health. Loss of connection to land is acknowledged as permanent and intergenerational.[63] This loss continues to be manifested in serious negative health outcomes including post-traumatic stress disorder, depression, anxiety, a lack of or loss of self-esteem, suicide, self-destructive behaviours including drug and alcohol abuse, and changes in molecular processes. Recent research has found an accumulating amount of evidence of an enduring effect of trauma exposure to be passed to offspring transgenerationally via the epigenetic inheritance mechanism of DNA methylation alterations which has the capacity to change the expression of genes and the metabolome.[64] Many First Nations (and non-Indigenous) people consider that the statistics in 2.1 above are a direct result of intergenerational trauma and the way in which the non-Indigenous community has largely refused to respect the validity of First Nations people’s prior claim to the land and has, over the years, in their view, attempted to assimilate or destroy First Nations culture. Proximate factors such as drug and alcohol abuse, child neglect and abuse, poor school performance and unemployment, have been identified as directly contributing to these statistics.[65]
The 2021 Australian Institute of Health and Welfare report[66] found that First Nations children under the age of 15 who lived in the same household as a member of the Stolen Generations had similar outcomes as the adult descendants such as poorer school attendance, reported more racism at school, higher levels of stress, poorer self-assessed health and higher rates of household poverty compared to other First Nations children.[67] These results provide a new perspective on how the intergenerational effects of removal from family that occurred for the Stolen Generations up to 1970 can still be seen in contemporary data about the children who live with the Stolen Generations.[68]
First Nations people are vastly over-represented in Australia in the criminal justice system and this has been described as a “national disgrace”.[69]
Connected to this, the police, government services and the law are frequently distrusted and/or seen as tools of oppression. For example, under protectionist policies, First Nations people were moved from their own land and forced to live on church or government “missions” (often with people from different tribal groups) and/or made to work for no or minimal wages. Under assimilationist policies (1910–1969), many (particularly light-skinned) children were “stolen” from their families so that they could be trained in how to speak English and live in non-Indigenous ways. This was government practice up until 1969 and continued in some areas for some time after this. “Stolen” children were frequently physically, sexually, and/or emotionally abused and mistreated. Despite such practices, many First Nations cultural practices, values and ways of interrelating survived, but generally at great socio-economic cost, as illustrated at 2.1 above.[70]
Having a trauma-informed approach
The efficacy of a trauma-informed approach to working with First Nations people is increasingly being recognised in the legal and justice context. Therapeutic jurisprudence, for example, assumes that a person appearing as a defendant in court proceedings will have complex trauma and that trauma is a primary cause for their offending behaviour.[71]
Government policy is beginning to acknowledge the critical importance of healing from intergenerational trauma. For example, the NSW Government has included healing as a key priority in its Aboriginal Affairs plan.[72] While many First Nations people regard white settlement of Australia as an “illegal occupation” or colonisation, the concept of “reconciliation” is important. The goal of reconciliation was the culmination of the 1991 Royal Commission into Aboriginal Deaths in Custody. Volume 5, Part G, entitled “Towards Reconciliation”, recognised that mechanisms had to be put in place to achieve this goal. These included recognition of the underlying cultural, social and legal factors which have a bearing on First Nations deaths in custody; mechanisms by which the diverse needs of First Nations people for land can be achieved; and mechanisms whereby recognition can be given to the past injustices and continuing inequality experienced by First Nations people. Recommendation 339 was that “all political leaders and their parties recognise that reconciliation between the Aboriginal and non-Aboriginal communities in Australia must be achieved if community division, discord and injustice to Aboriginal people are to be avoided” and that “political leaders use their best endeavours to ensure bi-partisan public support for the process of reconciliation and that the urgency and necessity of the process be acknowledged”. Reconciliation involves an acceptance by the non-Indigenous community of the way the First Nations community views the overall impact of colonisation, or truth-telling. The many losses suffered by First Nations communities as a result of colonisation were recognised in the formal apology given on 13 February 2008 by then Prime Minister Rudd and in then Prime Minister Paul Keating’s Redfern speech on 10 December 1992.
The 2017 National Constitutional Convention formulated the “Uluru Statement from the Heart”. The key elements are: sovereignty, constitutional reform, the Makarrata Commission and truth telling, a process that exposes the full extent of the past injustices experienced by First Nations people.[73]
Truth telling is seen as essential to acknowledging the wrongs of the past and creating a path for reconciliation. For the first time in Australia’s history, the Yoorrook Justice Commission will begin hearing evidence in Victoria in March 2022. The Commission has the full powers of a Royal Commission. Yoorrook means truth in the Wemba Wemba/Wamba Wamba language, and will make a formal record of two centuries of colonisation and oppression in Victoria.
For further information on a trauma-informed approach, see the following articles in the Judicial Officers’ Bulletin:
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P Hora, “The trauma-informed courtroom” (2020) 32(2) JOB 11
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W Hunt, “Adopting a trauma-informed approach in the District Court of NSW” (2020) 32(2) JOB 14
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R Dive, “The trauma-informed approach of the Drug Court of NSW” (2020) 32(3) JOB 19
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S Duncombe, “The trauma-informed approach of the NSW Youth Koori Court” (2020) 32(3) JOB 21
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S McCarthy, “The trauma-informed barrister” (2020) 32(3) JOB 28
2.2.3 Cultural differences
First Nations people resident in NSW have many different tribal origins and/or influences which may dictate their specific kinship ties, allegiance to a particular part of the country, language and/or spiritual beliefs. While it is important to note that not all First Nations people follow Aboriginal and Torres Strait Islander cultural “norms”, there are many features of Aboriginal and Torres Strait Islander culture and values that are common to many First Nations people, irrespective of their particular tribal origin.
The main cultural and value differences between many First Nations people and people from non-Indigenous backgrounds can be grouped as follows.
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Collective, group-oriented identity — First Nations culture is a much more collective and co-operative culture than, for example, the Anglo-Celtic Australian[74] relatively individualistic and stratified culture. Elders, not just one elder (that is, those considered to have wisdom, not necessarily the oldest), are charged with maintaining social, spiritual and cultural identity and cohesion.
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Family and kinship ties are wider and stronger — the family consists of the extended family often including distant family members (such as various levels of cousin). Family concerns are of primary importance, the nurturing of family and social networks is highly valued, and even distant family members are expected to look after one another.[75] Death or illness in the family generally takes priority over everything else. Children are seen as the responsibility of the extended family. Often “Aunts” (who may or may not be blood relatives), grandmothers, older sisters or cousins take on the role of the mother. (In this connection, note that older people who are not blood relations are often referred to as “Aunt” or “Aunty”, “Uncle” or “Unc” as a mark of respect). However, traditionally, children are also expected to make their own decisions from an early age.
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Connection to the land is central — First Nations people have a very strong sense of relationship to the land of their ancestors, based on Aboriginal and Torres Strait Islander spiritual belief that land is “mother” and the spirits of ancestors living on that land, give life and strength. This connection is articulated in the 2017 “Uluru Statement from the Heart” which describes First Nations people’s enduring sovereignty as a “spiritual notion” based on an ancestral tie between the land or “mother nature” and the First Nations people born there.[76] A First Nations person may refer to land as “my country”, “country”, or “Aboriginal nation”. Living in an urban area away from “country” does not necessarily reflect a lack of community ties to country. See Northern Territory v Griffiths[77] for a description of the lay and anthropological evidence of connection to the land and the effects, under Aboriginal and Torres Strait Islander laws and customs, when country is harmed.
A Welcome to Country or Acknowledgement of Country, often delivered at the beginning of an event such as a meeting or formal occasion, is important to pay respect to First Nations people and recognise that they are ongoing custodians of the land. A Welcome to Country is delivered through dance, song, speech or ceremony by a Traditional Owner or Elder who has authority to welcome others to their local region. An Acknowledgement of Country can be made by anyone — a First Nations or non-Indigenous person — and often highlights First Nations people’s intimate relationship with the land and their rich culture and history.[78]
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Respect for First Nations spirituality and culture is important — for example, “dreaming” stories or for Torres Strait Islanders “Tagai” stories, ceremonies, song, art and dance. First Nations education involves learning Aboriginal and Torres Strait Islander cultural and spiritual ways as well as language. In some areas of NSW there has been a revival in the teaching and learning of local First Nations languages. The Aboriginal Languages Act 2017 (NSW) commenced 5 March 2020 has two main purposes: to establish the Aboriginal Languages Trust to “provide a focussed, coordinated and sustained effort in relation to Aboriginal language activities at local, regional and State levels”, and to develop a strategic plan for the growth and nurturing of First Nations languages.
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Individual material possessions are traditionally not highly prized — family and spiritual matters are more important.[79] Traditionally, many material possessions, including the home, are seen as community resources with community ownership.
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Social behaviour is often public — rather than private. For example, many social events for First Nations and non-Indigenous people alike, may commonly occur in public rather than privately.[80] First nations people have a strong outdoor spirit, a sense of connection to country and of community versus the family unit. In addition, some Aboriginal people do not have the personal or financial resources to conduct social activities in private.
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In many First Nations communities, references to deceased persons are taboo — in these communities referring to the name of a deceased person or showing a picture of someone who is (recently) deceased can cause great distress. It is always best to check with local First Nations representatives what the practice in relation to this is in particular communities.
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Experience of “sorry business” — First nations people from a young age will be exposed to familial and community deaths proportionately more than people from Anglo-Celtic backgrounds.[81] “Sorry business” refers to the cultural practices and protocols associated with death.
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Different communication abilities and styles — many First Nations people in NSW speak a form of Aboriginal English and have a different style of linguistic and body communication than non-Indigenous people.[82] Traditionally, everyone has the right to speak and the right to listen, but listeners have the right to ignore speakers or to get up and leave. Consensus is important — but tends to be achieved without directly criticising other people’s proposals. Silence is highly valued. Eye contact may be minimal. Authority may be deferred to. In addition, as indicated in 2.1 above, many First Nations people have poor literacy skills, a relatively low level of education, and/or higher rates of the types of disabilities that require a different type of communication — for example hearing impairments, or alcohol and other drug abuse. For more about communication, see 2.3.3 below.
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Status of women — In pre-colonial First Nations societies, men and women performed well-understood roles — each having their important jobs to do, and their own set of cultural and spiritual practices.[83] Violence was not uncommon but was often governed by rules determined by responsibilities and obligations to kin and managed within a broader cultural context.
Colonisation altered the social conditions in which people live their lives particularly with the introduction of alcohol, tobacco and other drugs and changes to spatial arrangements between groups. Today, First Nations people mostly live in larger aggregations where the kinds of balances which were achieved in smaller groups are now impossible to maintain and from which they are unable to escape. Housing shortages mean that today many First Nations people can be living in the same overcrowded house as those with whom they would traditionally not have been: for example; young men and old women, brothers and sisters, uncles and nieces. One result of these changes has been that the nature and level of violence towards women has changed for the worse.[84]
Women’s business may have relevance in court proceedings: see 2.2.4 The possible impact of these cultural differences in court.
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Impact of customary law — Customary law is integral to First Nations culture. For First Nations people customary law is an “all encompassing reality”.[85] It provides a means of dispute resolution, based on traditional spiritual beliefs and cultural traditions, including providing sanctions against those actions which are considered harmful to the community. It is much broader than corporal punishment and is a means of maintaining social order where local First Nations communities act to solve their own problems and resolve disputes. Many First Nations people are increasingly looking for ways of merging Australian law and legal processes with customary law in order to provide more effective and long-lasting ways of resolving problems, and also to ensure that First Nations offenders are not doubly punished — that is, via the courts system and customary law.[86] Circle sentencing has been a positive initiative in that it enables full First Nations input from First Nations Elders, provides a culturally appropriate way of discussing sanctions and therefore (some) self-determination, while at the same time meeting the requirements of Australian law in relation to the type of sentence imposed — for more on this see 2.3.6 below.
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Racism, prejudice and discrimination — Most First Nations people have experienced racism, prejudice and discrimination in relation to all forms of public interaction — for example, in connection with rental accommodation, types of services (government and private) and employment and interactions with police. Most will have had frequent experience of this. Very few, if any, will have had no such experience.[87]
This may make some First Nations people more likely to name a perceived problem, or a perceived difference in relation to how they are treated as being a form of racism or race discrimination. However, if you follow the guidance provided at 2.3, below, this should be less likely to occur.
2.2.4 The cultural importance of Aboriginal and Torres Strait Islander languages
NSW is the first jurisdiction in Australia to enact legislation to protect and recognise the importance of First Nations languages. The Aboriginal Languages Act 2017 commenced 5 March 2020 with the aim of addressing the loss of so many of Australia’s First Nations’ languages and setting the right to control the nurturing of languages with First Nations people. The Act’s preamble acknowledges:[88]
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The languages of the first peoples of the land comprising NSW are an integral part of the world’s oldest living culture and connect Aboriginal people to each other and to their land;
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As a result of past government decisions, Aboriginal languages were almost lost, but they were spoken in secret and passed on through Aboriginal families and communities;
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Aboriginal people will be reconnected with their culture and heritage by the reawakening, growing and nurturing of Aboriginal languages;
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Aboriginal languages are part of the cultural heritage of NSW; and
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Aboriginal people are the custodians of Aboriginal languages and have the right to control their growth and nurturing.
The Act establishes the NSW Aboriginal Languages Trust with the objective to “provide a focused, coordinated and sustained effort in relation to Aboriginal language activities at local, regional and State levels”.[89]
The Trust has conducted a consultation process with Aboriginal communities as part of a five-year Strategic Plan to support Aboriginal language groups and bring awareness of the contributions that languages bring to both Indigenous people and NSW as a whole. [90]
From a national perspective, all State and Territory governments have signed up to targets set out by the National Agreement on Closing the Gap to have a sustained increase in the number and strength of Aboriginal and Torres Strait Islander languages being spoken by 2031.[91]
2.2.5 The possible impact of these cultural differences in court
Unless appropriate account is taken of the types of cultural differences listed in 2.2 above, and the statistics listed at 2.1 First Nations people may:
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feel uncomfortable, resentful, fearful or overwhelmed
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feel offended by what occurs in court
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not be adequately understood, be able to get their point of view across and/or understand what is happening
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feel that an injustice has occurred
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in some cases be treated unfairly and/or unjustly.
The Local Court and the Children’s Court may order a hearing before a female magistrate if it is “necessary for the effective exercise of the court’s statutory powers”: Lacey (a pseudonym) v Attorney General for NSW [2021] NSWCA 27 at [119] per McCallum JA. A conditional stay of proceedings may be granted until a female magistrate can hear such a matter: at [25]; [45]; [119]. A court may limit the access to evidence in proceedings to females (lawyers, witnesses) for cultural or gender reasons: at [31]; [41]; [85].[92]
Section 2.3, following, provides additional information and practical guidance about ways of treating First Nations people during the court process, so as to reduce the likelihood of these problems occurring.
2.2.6 National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait islander women and migrant and refugee women
The Judicial Council on Diversity and Inclusion (JCDI) (formerly the Judicial Council on Cultural Diversity) has developed a national framework for both Aboriginal and Torres Strait Islander women and migrant and refugee women to improve access to justice, particularly in the context of family violence and family breakdown.
This framework is a national approach to improving access to justice and achieving equality before the law for Aboriginal and Torres Strait Islander women and migrant and refugee women, providing an opportunity for Australian courts to build on existing efforts to respond to the particular challenges and barriers that may affect Aboriginal and Torres Strait Islander women and migrant and refugee women in their interaction with the court system. The framework is focussed on adapting court policies, procedures and resources, rather than the content of the law, and enables cultural considerations for diverse court users.
In developing this national framework of best practice guidelines and resources to be used across Australian courts, the JCDI drew on the recommendations and findings of its two consultation reports — The path to justice: Aboriginal and Torres Strait Islander womenʼs experience of the courts[93] and The path to justice: migrant and refugee women’s experience of the courts.[94] Particular reference should be made to the suggestions at pp 7–21 of the Framework.
2.2.7 Justice reinvestment and the OCHRE plan
Justice reinvestment
Justice reinvestment (JR) is a policy solution to address the over incarceration of Aboriginal and Torres Strait Islander peoples in Australia. The ALRC Pathways to Justice Inquiry recommended that governments provide support to establish an independent justice reinvestment body.[95] The purposes of JR are to promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the causes of crime and incarceration. The policy has its origins in the United States and is directed to government and community-driven investment in localised early intervention, prevention and diversionary solutions to reduce crime, build local capacity and strengthen communities.
Just Reinvest NSW was formed in 2013 as an independent, not for profit, membership-based organisation. Just Reinvest NSW began working with the Bourke community in 2013 and has recently begun working in Moree and Mount Druitt. The Maranguka Justice Reinvestment Project is the first major JR pilot in Australia. KPMG conducted an impact assessment of the pilot in November 2018 and found improvements in family strength, youth development and adult empowerment, with estimated savings to the criminal justice system of $3.1 million.[96]
Further information about the project may be found on the Just Reinvest NSW website.[97]
OCHRE plan: a NSW Government strategy
OCHRE is an acronym for Opportunity, Choice, Healing, Responsibility, Empowerment. OCHRE, the NSW Government’s plan for Aboriginal affairs, commenced on 5 April 2013. OCHRE consists of various initiatives with the aim of supporting First Nations communities to improve their education and employment outcomes and enhance service accountability to support these goals. The initiatives include Healing, Local Decision Making, Connected Communities, Aboriginal Languages and Culture Nests, Opportunity Hubs, Aboriginal Economic Prosperity Framework and Solution Brokerage. Local Decision Making recognises that First Nations communities need to be directly involved in developing and implementing decisions and service delivery tailored for their community needs. The Healing initiative formally recognises the need for healing intergenerational trauma from the legacy of colonisation and commits to advance the dialogue on healing with First Nations communities.[98]
The NSW Ombudsman evaluated the implementation and progress of the OCHRE plan in 2019 and published a report. The Ombudsman has recommended that the OCHRE plan continue and be strengthened, identifying its success in improving school attendance and engagement, and enhancing pathways to further study, training or jobs in the communities it has been operative.[99]
2.2.8 The Walama List in the District Court
The Walama List is a pilot in the NSW District Court operable from 31 January 2022. It is aimed at giving eligible Aboriginal and Torres Strait Islander offenders a more culturally-specific and community-based approach to sentencing. The Walama List is set up by Practice Note 26 of the NSW District Court. The pilot is the next step in the District Court’s commitment to developing a Walama Court, and with it, culturally appropriate responses in sentencing First Nations offenders.[100]
The objectives of the Walama List are to: reduce the risk factors related to re-offending, reduce the rate of breaches of court orders, reduce the overrepresentation of Aboriginal and Torres Strait Islander persons in custody in NSW, increase compliance with court orders, increase community participation and confidence in the criminal justice system, and facilitate a better understanding of any underlying issues which may increase the likelihood of re-offending.
The Walama List is a sentencing court only for adult Aboriginal and Torres Strait Islander offenders with matters before the NSW District Court. While proceedings are conducted within the existing statutory framework for sentencing and in accordance with established sentencing principles and precedent, the Walama List proceedings also involve Elders and other Respected Persons of the community. The Elders and Respected Persons provide insight to the sentencing proceedings in both a Sentencing Conversation and Case Plan Conversation by informing the court about cultural, historical and social issues relating to the offender’s background and community in a culturally safe way. Their presence also represents the importance of First Nations cultural authority in the decision-making and respect for the judicial process in sentencing. The Walama List pilot will operate one week per month with the capacity to accommodate up to 50 participants at a time. Offenders who plead guilty can participate in a tailor-made program that includes drug and alcohol treatment, counselling and other therapeutic supports prior to being sentenced.
Eligibility for the Walama List requires that the offender: has sentence proceedings listed in the NSW District Court Downing Centre, is descended from an Aboriginal person or Torres Strait Islander, identifies as an Aboriginal person or Torres Strait Islander, and is accepted as such by the relevant community; has pleaded guilty to the offence(s); has signed an Agreed Statement of Facts on Sentence; and, consents to having their matters dealt with in the Walama List.
“Walama” is a word from the Dharug language meaning “come back” or return. In the context of the Walama List, it is a coming back to identity, community, culture, and a healthy, crime-free life.[101]
2.2.9 Protocol for dealing with inquiries into deaths of First Nations people
The final report of the Royal Commission into Aboriginal Deaths in Custody made a number of recommendations across a wide range of areas, including in relation to practices and procedures within the coronial jurisdiction. Recommendation 8 required the establishment of a Protocol for inquests into the deaths of First Nations people in custody to supplement the Practice Note when the death in custody is that of a First Nations person. The Local Court of NSW issued Coronial Practice Note 3 of 2021. This sets out case management arrangements which apply to all deaths occurring in custody or as a result of police operations, irrespective of the background of the deceased.
However, a considered response to Recommendation 8 was required. The Protocol, “Supplementary arrangements applicable to section 23 deaths involving First Nations Peoples”, commenced on 22 April 2022, is issued pursuant to s 10(1)(d) of the Coroners Act 2009 (the Act) and applies to all deaths or suspected deaths of First Nations people which fall within the scope of s 23 of the Act. The Protocol specifically recognises the extended family structure and complex and dynamic kinship system which defines where a person fits into their family and community (see 6.1) and ensures that any hearing is conducted in a culturally sensitive and appropriate manner, including by adhering to any cultural considerations raised by the family of the deceased (so far as is practicable), including matters such as making a Welcome to Country or an Acknowledgement of Country, a smoking ceremony and the display and use in court of symbols and items of cultural significance to the deceased and the deceased’s family (see 11.1).
2.3 Practical considerations
2.3.1 Diversionary options
First Nations people are disproportionately represented in NSW prisons (reflecting national trends) and are more likely than non-Indigenous people to be arrested for relatively minor offences.[102]
Given this, and recommendations of the 1991 Royal Commission into Aboriginal Deaths in Custody and the 2018 Pathways to Justice — Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133) to divert First Nations people from the courts system and imprisonment wherever possible, it is important that any locally available pre-trial diversionary options are considered and used where appropriate as a condition of bail or a s 11 Crimes (Sentencing Procedure) Act 1999 adjournment. Available alternatives to custody should also be considered where appropriate (see 2.3.6 below).[103] For further information about non-custodial alternatives, see the Sentencing Bench Book at [4-400] and the Aboriginal Services Unit fact sheets.[104]
For young Aboriginal and Torres Strait Islander people (children under the age of 18), the Youth Koori Court sits in Parramatta and Surry Hills. The court operates under a deferred sentence model (s 33(1)(c2) Children (Criminal Proceedings) Act 1987) to provide direct case work and cultural support through an Action and Support Plan over 6–12 months prior to sentence. The young person will have his or her efforts taken into account on sentence as this directly affects the assessment of their rehabilitation prospects.[105]
2.3.2 Bail
As indicated in 2.1 above, First Nations people appearing in NSW courts are more likely to be refused bail than non-Indigenous people (14.5% First Nations people refused bail compared with 6.9% non-Indigenous people).[106] First Nations defendants are also more likely to be refused bail due to already being in custody for a prior offence — 9% compared to 3% for non-Indigenous defendants. Conditions of bail can often have a disproportionately stringent impact on First Nations people as, particularly in rural areas, the conditions may conflict with family and cultural obligations. Where residence or banning conditions are a condition of bail, the person released on bail will not have access to support from the community in which he or she grew up.[107]
2.3.3 Language and communication
2.3.3.1 Background information
First Nations people may face a number of difficulties in relation to aspects of language and communication in court proceedings. The work of Dr Diana Eades with First Nations speakers of English has shown how “linguistic factors can play a key role” in outcomes in the criminal justice process.[117] Aboriginal people may have:
-
a lesser ability to speak and/or understand (standard) English. Many speak a form of Aboriginal English
-
a different communication style, (for example, not making eye contact, use of silence preceding answers to questions), that makes it hard for others to adequately understand them, or means that they are wrongly assessed as, for example, evasive or dishonest
-
a lower literacy or educational level than average
-
a disability that requires using a communication aid or different technique — see section 5
-
a better knowledge or higher appreciation of First Nations customary law than Australian law and legal processes.
It is critical that these matters are taken into account so as not to unfairly disadvantage the particular person. Just like everyone else, a First Nations person who appears in court needs to understand what is going on, be able to present their evidence in such a manner that it is adequately understood by everyone who needs to be able to assess it, and then have that evidence assessed in a fair and non-discriminatory manner.
The University of NSW is undertaking a project to examine the ways judicial officers can improve courtroom communication and prevent miscommunication and error, particularly in criminal cases where speakers of the “new and emerging” and First Nations languages are involved, and where interpreters receive limited or no specialised training. See “Access to justice in interpreted proceedings: the role of judicial officers” for more information.[118]
2.3.3.2 Terminology, descriptors and stereotyping or culturally offensive language
It is important to use terminology and descriptors that do not cause offence and/or sound discriminatory to First Nations people.
2.3.3.3 Non-verbal communication — appearance, behaviour and body language
Most people, including jurors, are likely to, at least in part, assess a person’s credibility or trustworthiness on their demeanour.
Yet, not only has demeanour been found to be a fallible indicator of veracity,[119] but also our appearance, behaviour and body language is all heavily culturally-determined. How a First Nations person appears and behaves in any particular situation is likely to be different from how an Anglo-Celtic Australian appears and behaves — and this may be even more marked in First Nations people who have had less contact with non-Indigenous people.
This means that it is vital that no-one in the court allows any culturally-determined assumptions about what they believe looks trustworthy and what does not to unfairly mislead or influence their assessment of the credibility or trustworthiness of a First Nations person. Great care must be exercised in making demeanour findings, particularly where a witness is from a different cultural or ethnic background to that with which the trial judge is familiar, see: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at [21]–[27].
For many First Nations people, the traits that Anglo-Celtic Australians regard as indicative of dishonesty or evasiveness (for example, not making direct eye contact) can be the very traits that are the cultural “norm” and/or expected to be displayed in order to be seen as polite and appropriate and not be seen as rude or culturally inappropriate.
Just as there are sub-cultures within Anglo-Celtic Australian culture that observe different styles of appearance, behaviour and body language, and also individuals who do not fit any particular cultural norm, there are similar examples within First Nations cultures. So, it is also important not to assume that everyone who is a First Nations Australian will behave in the same way, or to assess First Nations people who do not seem to follow general First Nations patterns of behaviour as dishonest or lacking in credibility.
2.3.3.4 Verbal communication — language level and style
There are varying levels of literacy and education among First Nations people in NSW. Many use a form of Aboriginal English. In addition, many First Nations people have culturally different communication styles.
Yet, just the same as anyone else who appears in court, a First Nations person needs to understand what is going on, the meaning of any questions asked of them, and to be sure that their evidence and replies to questions are adequately understood by the court.
2.3.4 The impact of being First Nations on any behaviour relevant to the matter(s) before the court
2.3.5 First Nations burial rights and estate distribution orders
First Nations burial rights
There is no standard approach or hard and fast rule that can be formulated and applied when determining a burial dispute regarding an intestate deceased First Nations person. In such cases, the court will exercise its inherent jurisdiction and consider the factual considerations balanced with common law principles and practical considerations, as well as cultural, spiritual and religious factors of importance: State of SA v Smith (2014) 119 SASR 247 at [34]; White v Williams (2019) 99 NSWLR 539 at [15]–[27].
The received view at common law is that there is no property in a dead body; no person is entitled to ownership of a deceased’s remains. It is usually accepted that, where a deceased has left a will, the executor of the estate has the right to arrange for the burial of the body. Where there is no named executor or no will, the person who is entitled to take out letters of administration of the estate with or without a will annexed has the right to arrange for burial: State of SA v Smith at [22]. White v Williams (2019) 99 NSWLR 539 involved an urgent application for a declaration that a person could make burial arrangements for a First Nations deceased who had died intestate, where there were competing claims about where he should be buried.
Referring to State of SA v Smith (2014) 119 SASR 247, the court identified four main considerations that could assist in the resolution of the dispute:
- 1.
-
who might be entitled to take out letters of administration
- 2.
-
any First Nations cultural matters and concerns
- 3.
-
the deceased’s own wishes and
- 4.
-
the wishes of any living close relatives.
The wishes of the deceased’s children in White v Williams carried very great weight, particularly in the context where their mother expressed the importance of visiting their father’s grave for the purpose of grieving and mourning: at [26].[136]
See also Milson v Milson [2020] NSWSC 919, which held that the wishes of the deceased’s mother for the deceased to be buried according to the tribal custom of the Wiradjuri tribe should not govern the outcome of the case: at [85]. Importantly, the deceased had expressed a desire to be cremated, and Sackar J noted that while many First Nations people considered burial on country to be of great importance, there was no evidence to support the plaintiff’s assertion that cremation was contrary to First Nations custom: at [81].
Estate distribution orders
Part 4.4 of the Succession Act 2006 (NSW) provides for the distribution of an intestate First Nations person’s estate.
Section 101 of the Succession Act defines an Indigenous person as a person who:
- (a)
-
is of Aboriginal or Torres Strait Islander descent, and
- (b)
-
identifies as an Aboriginal person or Torres Strait Islander, and
- (c)
-
is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community.
The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, may apply to the Supreme Court for a distribution order: s 133(1). An application for a distribution order must be accompanied by a scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged: s 133(2).
In formulating the terms of the order, the court must have regard to the scheme for distribution submitted by the applicant (s 133(3)(a)), and the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged: s 133(3)(b). The “laws, customs, traditions and practices” are those relating to distribution of an intestate estate. They are not a set of positivist rules but a general understanding within a community of rights and obligations of an individual living, and dying, in the community. Their content must be determined relative to the particular circumstances of the Indigenous intestate and the community or group to which he or she belonged: Re Estate Wilson, Deceased (2017) 93 NSWLR 119 at [140]–[143], [151]; Re Estate Jerrard, Deceased (2018) 97 NSWLR 1106 at [9], [20]–[22].The legislative policy and purpose underpinning Pt 4.4 of the Succession Act support the view that the Indigenous concept of “family” is an important, if not decisive, element of determining “the laws, customs, traditions and practices” of an Indigenous community or group: Re Estate Wilson at [152]. The concept of “family” may differ radically from the general concept of “family” relationships upon which Pt 4.2 and Pt 4.3 of the Succession Act are predicated. The object of Pt 4.4 is to do what is just and equitable in the particular circumstances of an individual case to accommodate such factors in the administration of an Indigenous intestate estate: Re Estate Jerrard, Deceased at [9], [20]–[22].
Expert evidence may be used to prove laws, customs, traditions and practices but is not always required: Re Estate Wilson at [154]–[155]. However, as a matter of general practice, applications under Pt 4.4 should, whenever possible, “include evidence from one or more senior members of the intestate’s community or group, or evidence prepared or endorsed by a Local Aboriginal Land Council” as to the customary law governing succession, the deceased’s Indigenous status; the Indigenous community or group the deceased “belonged” to; where the applicant is not the personal representative of an Indigenous intestate, the basis of the applicant's claim to be entitled to share in the estate under customary law; the identity of other potential claimants; and the proposed scheme for distribution of the estate: Estate of Mark Edward Tighe [2018] NSWSC 163 at [10]; [30]–[36].
The court is not bound to accept evidence of “traditional customary lore” nor evidence characterised as “expert”. In each case, the court is obliged, in all the circumstances, to exercise an independent judgment upon its assessment of the materiality and probative value of the evidence available on questions the court is to determine. If the court is not satisfied about the existence, or content, of “the laws, customs, traditions and practices of the Indigenous community or group to which [an] intestate belonged” the only course ultimately open to it may be to order that an application for a distribution order be dismissed: Re Estate Jerrard, Deceased at [95]. In a numerically small Indigenous community there is significant probative value in the fact that Elders, other members and official representatives of the community agree upon a formulation of “traditional customary lore” (which has no competing formulation of traditional customary law or practice advanced against it), in circumstances in which substantial notice of these proceedings has been given to the community as a whole. In making a finding about “the laws, customs, traditions and practices” of an Indigenous community the court should generally endeavour to listen to the voices of the community — not uncritically, but empathetically: Re Estate Jerrard, Deceased at [97].
The court may not make an order unless satisfied that the terms of the order are, in all the circumstances, just and equitable: s 134(4). The jurisdiction is “essentially equitable in character”: Re Estate Wilson at [136]; Estate of Mark Edward Tighe at [58]; Re Estate Jerrard, Deceased at [108]. Consideration of what is “just and equitable” is not confined to “the laws, customs, traditions and practices” of a particular Indigenous community. Section 134(4) serves as a safeguard against abuses of process, and requires the court to consider the broader public interest in the due administration of estates generally: Re Estate Jerrard, Deceased at [105]–[107], [113]–[115]. It has been suggested extra-curially that for a distribution order to work effectively, its operation should not be limited by a narrow interpretation of the grounds necessary to enliven the court’s jurisdiction, in particular the concept of a First Nations person, the concept of an “Indigenous community or group”, the concept of “belonging” to “an Indigenous community or group” and the concept of the “laws, customs, traditions and practices” of a First Nations community or group.[137]
2.3.6 Adoption proceedings
The Adoption Act 2000 (NSW) requires the Supreme Court to apply the “Aboriginal and Torres Strait Islander child placement principles” specified in s 35 in making an adoption order if the child the subject of the order is an “Aboriginal child”. An “Aboriginal child” is defined in s 4 as meaning “a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2)”. Subsection 2 provides that “the Court may determine that a child is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent”. For an detailed discussion of the Aboriginal and Torres Strait Islander child placement principles and critique of their implementation (specifically in the context of the Children’s Court care and protection jurisdiction), see P Gray, “Beyond placement: realising the promise of the Aboriginal and Torres Strait Islander Child Placement Principle” (2021) 33 JOB 99. The Aboriginal and Torres Strait Islander Child Placement principles are legislatively enshrined in the Adoption Act and in Ch 2, Pt 2 of the Children and Young Persons (Care and Protection) Act, referred to as the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles in the context of the care and protection jurisdiction of the Children’s Court.
2.3.7 Guidance to the jury — points to consider
As indicated at various points in 2.3 above, it is important that you ensure that the jury does not allow any ignorance of cultural difference, or any stereotyped or false assumptions about First Nations people to unfairly influence their judgment.
2.3.8 Sentencing decisions — points to consider
2.3.9 The Fernando principles[157]
The Fernando principles, which involve a thoughtful analysis of sentencing in relation to particular First Nations offenders, have a resonance beyond the jurisdiction of NSW courts. They are taken up, for instance, in the Aboriginal Benchbook for Western Australian Courts,[158] as principles relevant to sentencing in that State.
The eight principles involved were first expressed in 1992, in the NSW Court of Criminal Appeal case of R v Fernando,[159] and are as follows:
- (a)
-
The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group.
- (b)
-
The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
- (c)
-
It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within First Nations communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
- (d)
-
Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of First Nations society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive First Nations people of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
- (e)
-
While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within First Nations communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
- (f)
-
That in sentencing persons of First Nations descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
- (g)
-
That in sentencing a First Nations person who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
- (h)
-
That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.
In R v Welsh,[160] Hidden J further observed that:
Only the most myopic in this community would deny that much of the contact of Aboriginal people with the criminal law can be traced to their dispossession and the breakdown of their culture. The high incidence of imprisonment of Aboriginal people, and the often deleterious and sometimes tragic effects it has upon them, are of justifiable concern to the community: R v Russell (1995) 84 A Crim R 386, per Kirby P at 391–392. To recognise that background in an appropriate case for the purpose of sentence is neither discriminatory nor paternalistic.
2.3.10 After Fernando
A number of NSW Supreme Court and NSWCCA decisions confined the application of the Fernando principles to Aboriginal people who came from remote areas: see for example R v Morgan (2003) 57 NSWLR 533 at [21]–[22] and R v Newman [2004] NSWCCA 102 at [66], [68]. However, in 2013, the High Court considered the issue of sentencing Aboriginal offenders in Bugmy v The Queen (2013) 249 CLR 571 and Munda v WA (2013) 249 CLR 600.
The appellant in Bugmy came from a deprived background, having grown up in Wilcannia in a community where alcohol abuse and violence was commonplace. He was sentenced to an overall sentence of 6 years, 3 months for assaulting a correctional officer. The primary sentencing judge had applied the Fernando principles and the subsequent judgment of the NSWCCA in Kennedy v R [2010] NSWCCA 260. Justice Simpson in Kennedy at [53] commented that Fernando was not about sentencing First Nations people but about the recognition of social disadvantage, regardless of the offender’s ethnicity, that frequently precedes the commission of a crime. Justice Simpson also commented that social deprivation, resulting from alcohol consumption (or otherwise) is not confined to remote or rural communities (at [57]).[161]
On appeal to the NSWCCA,[162] the prosecution argued that the sentencing judge had given too much weight to the Fernando propositions. The CCA said at [25] that “with the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account must diminish. This is particularly so when the passage of time has included substantial offending”. The CCA resentenced the appellant to a lengthier term.
On appeal to the High Court, the appellant took issue with this, and submitted that NSW courts should take into account “the unique circumstances of all Aboriginal offenders as relevant to the moral culpability of an individual Aboriginal offender” as well as the high rate of incarceration of First Nations people: at [28]. The High Court rejected this submission as this approach was contrary to individualised justice. The High Court distinguished the Canadian decisions and Canadian legislative principles the appellant relied on: at [36]. The High Court held that a sentencing court should not apply a different method of analysis for Aboriginal offenders in NSW than for non-Aboriginal offenders: at [36].
The High Court nonetheless confirmed at [37] that: “An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence.” The court approved the comments of Simpson J in Kennedy about the impact of social disadvantage as correctly explaining “the significance of the statements in Fernando” (at [37]). The court said that propositions (C) and (E) in Fernando addressed the significance of intoxication at the time of the offence. Intoxication is not usually a matter that mitigates an offender’s conduct but the propositions recognise that where an offender’s abuse of alcohol reflects the environment in which he or she was raised, it should be taken into account as a mitigating factor: at [38]. The High Court also confirmed that proposition (G) in Fernando recognises that a lengthy term of imprisonment might be particularly burdensome for a First Nations offender. The court said at [39] that in each of these respects, the propositions conform with Brennan J’s statement of sentencing principle in Neal v The Queen (1982) 149 CLR 305 at 326 that the same sentencing principles are to be applied irrespective of the offender’s membership of an ethnic or other group but a court can take into account facts that exist only by reason of the offender’s membership of such a group.
The High Court also rejected the submission in the CCA appeal that a background of social deprivation diminishes over time. The Court said at [43]–[44]:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult … An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
The majority in Munda v WA, a judgment handed down the same day as Bugmy v The Queen, dealt with the circumstances of social disadvantage at [50]–[60]. The majority said at [53]:
Mitigating factors must be given appropriate weight, but they must not be allowed “to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.” It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.
When sentencing First Nations offenders, judicial officers need to ensure that the material before them in relation to the individual offender provides evidence of a socially deprived background. The High Court commented at [41] of Bugmy:
In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.
It is not necessary to require a causal link between a background of social deprivation and abuse and the offending behaviour as a necessary condition to permit mitigation of sentence: R v Irwin [2019] NSWCCA 113 at [116]. As stated by Gageler J in Bugmy at [56], the effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment: Irwin at [116]–[117].
In Hoskins v R [2021] NSWCCA 169, a First Nations offender had a stable childhood but during adolescence, after discovering his parents were not his biological parents, he moved to live with his biological mother and was exposed to an environment where anti-social conduct was normalised. The sentencing judge was found to have erred by finding “no evidence” of social disadvantage and failing to apply the principles in R v Fernando and Bugmy v The Queen. The offender’s childhood and adolescence were held to be equally formative: at [61], [64].
The Significance of Culture to Wellbeing, Healing and Rehabilitation,[163] a report commissioned by the Bugmy Bar Book Committee, was referred to by Loukas-Karlsson J in R v BS-X [2021] ACTSC 160 in respect to sentencing proceedings concerning a 15-year-old Wiradjuri male who had a diagnosis of complex developmental trauma. The report underlined the principles derived from Bugmy. In summarising some of the key aspects of the report relevant to sentencing decisions, her Honour said:[164]
The report examines rehabilitation and wellbeing for Aboriginal and Torres Strait Islander people. Further, the report examines the relationship between Aboriginal culture, healing, rehabilitation, and the impact of imprisonment. The report highlights the importance of culture to Aboriginal and Torres Strait Islander peoples and therefore, the importance of culturally appropriate treatments to facilitate rehabilitation. The operation of culturally appropriate treatments are explored in relation to the criminal justice system. The report underlines that cultural identity is an important protective factor that promotes self-worth and therefore, rehabilitation.
2.4 Further information or help
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Interpreting and translating services — see 3.3.1.3.
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The following organisations can provide information or expertise about Aboriginal communities, their cultural or language differences or needs, and/or local Aboriginal groups, organisations and programs:
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Aboriginal Client and Community Support Officers (employed by the NSW Department of Justice), and/or local Aboriginal Community Justice Group, and/or Elders within the relevant Aboriginal community. Contact the Aboriginal Services Unit on (02) 8688 7755
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Office of the Director of Public Prosecution’s Aboriginal Witness and Assistance Officers — Ph: (02) 9285 8646
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Victims’ Services’ Aboriginal Contact Line — Ph: 1800 019 123
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Aboriginal Legal Service (NSW/ACT) Ltd — contact details: www.alsnswact.org.au/.
The following are the seven largest and geographically spread of the 24 offices around NSW:
Sydney
Level 1, 619 Elizabeth Street
Redfern NSW 2016
Ph: (02) 8303 6600
Fax: (02) 9319 2630Nowra
89 Plunkett Street
Nowra NSW 2541
Ph: (02) 4422 3255
Fax: (02) 4422 3256Grafton
18–26 Victoria Street
Grafton NSW 2460
Ph: (02) 6640 1400
Fax: (02) 6640 1410Wagga Wagga
19 Trail Street
Wagga Wagga NSW 2650
Ph: (02) 6932 7200
Fax: (02) 6921 9340Armidale
128 Dangar Street
Armidale NSW 2350
Ph: (02) 6772 5770
Fax: (02) 6772 5771Dubbo
23–25 Carrington Avenue
Dubbo NSW 2830
Ph: (02) 6882 6966
Fax: (02) 6882 0726Wollongong
PO Box 191
Wollongong East NSW 2520
Ph: (02) 4225 7977
Fax: (02) 4225 7979
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-
NTS Corp (previously NSW Native Title Services Ltd)
Level 1, 44-70 Rosehill Street
Redfern NSW 2016
Ph: (02) 9310 3188 or 1800 111 844
Email:information@ntscorp.com.au
Web: http://www.ntscorp.com.au/ -
NSW Aboriginal Land Council
Level 5, 33 Argyle Street
Parramatta NSW 2150
PO Box 1125
Parramatta NSW 2150
Ph: (02) 9689 4444
Fax: (02) 9687 1234
Email:media@alc.org.au
Web: http://alc.org.au -
Aboriginal Medical Service Cooperative Redfern
36 Turner Street
Redfern NSW 2016
Ph: (02) 9319 5823
Fax: (02) 9319 3345
web: https://amsredfern.org.au -
Tranby National Indigenous Adult Education and Training
13 Mansfield Street
Glebe NSW 2037
Ph: (02) 9660 3444 or Freecall: 1800 601 988
Email:reception@tranby.edu.au
Web: www.tranby.edu.au -
Nearest University — particularly if it has an Aboriginal Unit.
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Local First Nations community organisations — such as an Aboriginal cultural centre, Aboriginal housing company (in most major country centres) and the Aboriginal Children’s Service.
2.5 Further reading
Aboriginal Justice Advisory Council, NSW Aboriginal Justice Plan: Beyond Justice 2004–2014, 2003, Sydney, signed by the Hon Bob Debus, NSW Attorney General and the members of the NSW Aboriginal Justice Advisory Council, accessed 16/6/2023.
Aboriginal Justice Advisory Council, Speak Out, Speak Strong, Inquiry into the needs of Aboriginal women in custody, 2003, accessed 26/6/2023.
J Atkinson, Trauma Trails Recreating Song Lines – the Transgenerational Effects of Trauma in Indigenous Australia, Spinifex Press, 2002.
J Atkinson, J Nelson et al, “Addressing individual and community transgenerational trauma” in P Dudgeon, H Milroy, R Walker, Working together: Aboriginal and Torres Strait Islander mental health and wellbeing principles and practice, Australian Government Department of Prime Minister and Cabinet, 2nd edn, 2014, ch 17.
Australasian Institute of Judicial Administration Inc (AIJA), Aboriginal Benchbook for Western Australian Courts, 2nd edn, 2008, Carlton, Victoria, accessed 16/6/2023.
Australasian Institute of Judicial Administration Inc, Bench Book for Children Giving Evidence in Australian Courts, 2009 (updated February 2015), Melbourne, accessed 16/6/2023.
Australian Bureau of Statistics, Housing statistics for Aboriginal and Torres Strait Islander peoples, 2021, released 16/9/2022, accessed 20/6/2023
Australian Bureau of Statistics, NSW: Aboriginal and Torres Strait Islander population summary, based on 2021 Census, released 1/7/2022, accessed 20/6/2023.
Australian Bureau of Statistics, Prisoners in Australia, 2022, released 24/2/2023, accessed 20/6/2023.
Australian Bureau of Statistics, Recorded crime – victims, 2021, released 28/7/2022, accessed 20/6/2023.
Australian Bureau of Statistics, Snapshot of NSW: 2021, 28/6/2022, accessed 10/5/2023.
Australian Institute of Health and Welfare, Australiaʼs welfare 2021, 16/9/2021, accessed 23/6/2023.
Australian Institute of Health and Welfare, Children living in households with members of the Stolen Generations, 2019, accessed 16/6/2023.
Australian Institute of Health and Welfare and National Indigenous Australians Agency, Aboriginal and Torres Strait Islander Health Performance Framework, 2023, accessed 20/6/2023.
Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, ALRC Report No 31, 1986, Canberra, accessed 16/6/2023.
Australian Law Reform Commission, Pathways to Justice — Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, ALRC Report 133, 2018, accessed 16/6/2023.
S Beckett, “The Bar Book project: presenting evidence of disadvantage”, Public Defenders Criminal Law Conference, 2019, accessed 16/6/2023.
L Behrendt, “Aboriginal women and the criminal justice system” (2002) 14(6) JOB 41 at 42, accessed 16/6/2023.
J Briggs and R Scott, “Police interviews and coerced false confessions: Gibson v Western Australia” (2017) 51 WAR 199; (2018) 28 JJA 22.
C Cunneen, The Impact of Crime Prevention on Aboriginal Communities, 2001.
Deloitte Access Economics, An economic analysis for Aboriginal and Torres Strait Islander offenders: prison vs residential treatment, Report prepared for NIDAC, 2012, accessed 22/5/2023.
Corrective Services NSW, “NSW Inmate Census 2011”, Statistical Publication No 38, November 2011, accessed 16/6/2023.
Department of Health, Australian Indigenous Health InfoNet, “How long do Indigenous people live?” under “Frequently asked questions: What do we know about deaths among Aboriginal people? (April 2013)”.
D Dick, “Circle sentencing of Aboriginal offenders: victims have a say” (2004) 7(1) TJR 57.
M Dodson, “Customary law and the sentencing of Indigenous offenders” (2008) 20(5) JOB 37.
J Downes, “Oral Evidence in Arbitration”, speech to the London Court of International Arbitration’s Asia-Pacific Users’ Council Symposium, Sydney, 14 February 2003, accessed 16/6/2023.
P Dudgeon, H Milroy and R Walker (eds), Working Together: Aboriginal and Torres Strait Islander Mental and Health and Wellbeing Principles and Practice, 2nd edn, Australian Government Department of Prime Minister and Cabinet, 2014, accessed 16/6/2023.
S Duncombe, “The trauma-informed approach of the NSW Youth Koori Court” (2020) 32 JOB 21.
D Eades, Aboriginal ways of using English, Aboriginal Studies Press, Canberra, 2013.
D Eades, “Aboriginal English in court” (1994) 1(4) TJR 367.
D Eades, “Communicating with Aboriginal people in NSW” (2008) 20(10) JOB 85.
D Eades, “Communicating the right to silence to Aboriginal suspects: lessons from Western Australia v Gibson” (2018) 28 JJA 4.
D Eades, Courtroom Talk and Neocolonial Control Mouton de Grutyer, Berlin, 2008.
D Eades, “Telling and retelling your story in court: questions, assumptions and intercultural implications” (2008) 20(2) Current Issues in Criminal Justice 209.
V Edwige and P Gray, Significance of culture to wellbeing, healing and rehabilitation, Report, 2021, accessed 16/6/2023.
J Fitzgerald and D Weatherburn, “Aboriginal victimisation and offending: The picture from police records”, Crime and Justice Statistics Bureau Brief, December 2001, accessed 16/6/2023.
F Gale, “Introduction”, in F Gale (ed), Women’s Role in Aboriginal Society, 3rd edn, 1978, Australian Institute of Aboriginal Studies, Canberra.
The Healing Foundation, Make healing happen: it’s time to act, Report, May 2021, accessed 16/6/2023.
D Higgins and K Davis, “Law and justice: prevention and early intervention programs for Indigenous youth”, Resource sheet No. 34, AIHW, July 2014, accessed 16/6/2023.
A Hennessy, “Indigenous sentencing practices in Australia”, paper presented at the International Society for Reform of the Criminal Law Conference, Brisbane, July 2006, accessed 16/6/2023.
Human Rights and Equal Opportunity Commission, Bringing them home: report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 1997, accessed 23/6/2023.
Judicial Council on Diversity and Inclusion, National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait Islander women and migrant and refugee women, accessed 22/5/2023.
M Kirby, “Judging: reflections on the moment of decision” (1999) 4(3) TJR 189 at 193–4.
Law Council of Australia, The justice project, Final Report, 2018, accessed 16/6/2023.
Law Reform Commission of NSW, Sentencing indigenous offenders, Report No 96, 2000, Chapter 2, accessed 16/6/2023.
Law Reform Commission of Western Australia, The interaction of WA law with Aboriginal law and culture, Project No 94, Final Report, Perth, 2006, accessed 16/6/2023.
Law Society of New South Wales, “Working with Aboriginal and Torres Strait Islander clients: resources for solicitors in NSW“, Indigenous Issues Committee, September 2021, accessed 16/6/2023.
R Lawrie, B Thomas, I Potas, J Smart and G Brignell, Circle sentencing in NSW: a review and evaluation, Judicial Commission of NSW and Aboriginal Justice Advisory Council, accessed 16/6/2023.
E Marchetti and K Daly, “Aboriginal Courts and Justice Practices in Australia” (2004) 277 Trends and Issues in crime and criminal justice, Australian Institute of Criminology.
W Martin, “Unequal justice for Indigenous Australians” (2018) 14(1) TJR 35.
R McMahon, “The Bar Book Project: making use of the Bar Book in sentence and section 32 proceedings”, Legal Aid Criminal Law Conference, 2019, accessed 16/6/2023.
J Mouzos, “New Statistics Highlight Homicide Rate for Indigenous Women” (1999) 4(25) Aboriginal Law Bulletin 16.
NSWLRC, Jury directions in criminal trials, Report 136, “Aboriginal witnesses”, Sydney, 2013, pp 108–111, accessed 16/6/2023.
J Nicholson, “Circle sentencing is a success” (2005) 17(6) JOB 47.
S Norrish, “Sentencing Indigenous offenders: not enough ‘judicial notice’?”, paper given to the Judicial Conference of Australia Colloquium, Sydney, 13 October 2013, accessed 16/6/2023.
Ombudsman NSW, Responding to child sexual assault in Aboriginal communities, Sydney, 2012, accessed 16/6/2023.
R Pollard, P Whitehead, M Pringle and P Johnson, “Administration of intestate estates” (2016) 43 Australian Bar Review 142.
J People, “Trends and patterns in domestic violence assaults” (2005) 89 Crime and Justice Bulletin 1 at 8, accessed 22/5/2023.
L Re, “Oral evidence v written evidence: the myth of the ‘impressive witness’” (1983) 57 ALJ 679.
Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, 2016, accessed 16/6/2023.
B Thomas, Diverting Aboriginal Adults from the justice system, Aboriginal Justice Advisory Council.
B Thomas, RCIADIC Review of NSW Government Implementation of Recommendations, Aboriginal Justice Advisory Council, 2000.
B Thomas, Strengthening community justice: some issues in the recognition of Aboriginal Customary Law in New South Wales, Aboriginal Justice Advisory Council Discussion Paper, (archived site), accessed 16/6/2023.
L Trimboli, An evaluation of the NSW Youth Justice Conferencing Scheme, 2000, New South Wales Bureau of Crime Statistics and Research, NSW Attorney General’s Department, accessed 16/6/2023.
P Van der Zandt, A fraction more power: Review of the impact of the Children (Protection & Parental Responsibility) Act on Aboriginal people in Moree and Ballina, Aboriginal Justice Advisory Council, 1999.
D Weatherburn, B Lind and J Hua, “Contact with the New South Wales court and prison systems: the influence of age, Indigenous status and gender” (2003) 78 Crime and Justice Bulletin 1 at 4, accessed 16/6/2023.
D Weatherburn, Arresting incarceration: Pathways out of Indigenous imprisonment, Aboriginal Studies Press, Canberra, 2014.
J Wood AO QC, Report of the Special Commission of Inquiry into Child Protection Services, 2008, Vol 1, p 109, accessed 22/5/2023.
2.6 Your comments
The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.
We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.
In addition, you may discover errors, or wish to add further references to legislation, case law, specific sections of other Bench Books, discussion or research material.
Section 14 contains information about how to send us your feedback.
[1] Australian Bureau of Statistics (ABS), NSW: Aboriginal and Torres Strait Islander population summary, “Population”, based on 2021 Census, released 1/7/2022, accessed 20/6/2023.
[2] ibid, “Where Aboriginal and Torres Strait Islander people live”.
[3] ibid, “Language”.
[4] ibid, “Education”.
[5] ibid.
[6] ibid.
[7] Australian Institute of Health and Welfare (AIHW) and National Indigenous Australians Agency, Aboriginal and Torres Strait Islander Health Performance Framework, “Tier 2 – determinants of health: 2.04 Literacy and numeracy”, accessed 20/6/2023.
[8] ibid.
[9] ibid, “2.07 Employment”.
[10] AIHW, “Indigenous employment”, 16/9/2021, accessed 20/6/2023.
[11] AIHW and National Indigenous Australians Agency, above n 7, “2.07 Employment”.
[13] ABS, Snapshot of NSW: 2021, 28/6/2022, accessed 10/5/2023.
[14] The poverty line, as calculated by Markham and Biddle using data from the 2016 Census of Population and Housing conducted by the ABS, is $404 per week before housing costs: F Markham and N Biddle, “Income, poverty and inequality”, ANU Centre for Aboriginal Economic Policy Research (CAEPR), 2018, p 16, accessed 21/6/2023.
[15] AIHW, “Indigenous income and finance”, 16/9/2021, accessed 21/6/2023
[16] ABS, Housing statistics for Aboriginal and Torres Strait Islander peoples, 2021, released 16/9/2022, accessed 20/6/2023.
[20] ABS, Estimating homelessness: census, 2021, released 22/3/2023, accessed 20/6/2023.
[21] Australian Human Rights Commission (AHRC), Bringing them home: report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families, 1997, accessed 21/6/2023.
[22] J Korff, “A guide to Australia’s stolen generations” (drawing on research conducted by the Bringing them home report, ibid), Creative Spirits, last updated 3/5/2022, accessed 21/6/2023.
[23] Healing Foundation, Make healing happen: it’s time to act, Report, May 2021, pp 4, 26, accessed 23/6/2023.
[24] AIHW, Child protection Australia 2019–2020, Canberra, 2021, pp 47–58, accessed 21/6/2023. See also, C Liddle et al, The Family Matters Report 2021, SNAICC Report, p 25, accessed 23/6/2023.
[25] SNAICC Report, ibid, p 13.
[26] AIHW, Aboriginal and Torres Strait Islander health performance framework 2017 report: NSW, accessed 21/6/2023; ABS, 2016 Census, p 52, accessed 31/5/2018.
[28] EM Greenhalgh, A van der Sterren, et al, “MH 8.7 Morbidity and mortality caused by smoking among Aboriginal and Torres Strait Islander peoples” in M Scollo and M Winstanley (eds), Tobacco in Australia: facts and issues, Melbourne: Cancer Council Victoria, 2018 at 8.7.1, accessed 23/6/2023.
[29] ABS, 3302.0.55.003 — Life Tables for Aboriginal and Torres Strait Islander Australians, 2015–2017, accessed 21/6/2023.
[30] J Korff, “Ear health and hearing loss”, Creative Spirits, 20/3/2020, accessed 21/6/2023.
[31] Productivity Commission, Report on Government Services 2022, released 1/2/2022, E Health, Canberra, Table EA 34, Infant mortality rate by Indigenous status, three year average (per 1000 live births), accessed 23/6/2023.
[32] ABS, Recorded crime – victims, 2021, released 28/7/2022, accessed 20/6/2023.
[33] ibid.
[34] An intimate partner includes spouse/partner, ex-spouse/ex-partner and boy/girlfriend (including ex-boy/girlfriend).
[35] Statistics relate to the period between 2014 and 2018. Source: unpublished data supplied by the NSW Bureau of Crime Statistics and Research (BOSCAR), June 2018, based on NSW Police data. Note: the reported relationship between the person of interest and victim is subject to high error rates and should be used with caution.
[36] ibid.
[37] Based on unpublished BOCSAR data for 2017 provided in June 2018.
[38] As at 6/6/2019; ABS, 4510.0 — Recorded Crime — Victims, Australia, 2018, released 27/6/2019, accessed 21/6/2023.
[39] NSW Ombudsman, Responding to child sexual assault in Aboriginal communities, December 2012, p 83, accessed 22/5/2023.
[40] J Wood AO QC, Report of the Special Commission of Inquiry into Child Protection Services in NSW, 2008, Vol 1, p 109, accessed 23/6/2023.
[41] See for example, J Atkinson, et al, “Addressing individual and community transgenerational trauma” in P Dudgeon, H Milroy, R Walker, Working together: Aboriginal and Torres Strait Islander mental health and wellbeing principles and practice, Australian Government Department of Prime Minister and Cabinet, 2nd edn, 2014, ch 17, accessed 21/6/2023; J Atkinson, Trauma trails recreating song lines — the transgenerational effects of trauma in Indigenous Australia, Spinifex Press, 2002.
[42] BOCSAR, unpublished data 2018, Supplied by the NSW Bureau of Crime Statistics in July 2019.
[43] There has been a decrease in the proportion of Aboriginal offenders with an offensive language or behaviour charge since 2007 as a result of an increase in police proceeding against Aboriginal offenders by way of Criminal Infringement Notices for these offences, see NSW Ombudsman, “Review of the impact of Criminal Infringement Notices on Aboriginal communities”, August 2009, accessed 21/6/2023.
[44] Statistics relate to the period of 2018. Source: unpublished data supplied by the NSW Bureau of Crime Statistics and Research, June 2019, based on NSW Local Court data.
[45] I Klauzner and S Yeong, “What factors influence police and court bail decisions?”, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No 236, March 2021, p 21, accessed 21/6/2023.
[46] Statistics relate to the period between January and December 2017. Source: unpublished data supplied by the NSW Bureau of Crime Statistics and Research, June 2014, based on NSW Local Court data.
[47] BOSCAR, NSW criminal justice Aboriginal over-representation, Quarterly report, March 2022 – Aboriginal adults, accessed 20/6/2023.
[48] BOSCAR, NSW custody statistics: quarterly update, December 2021, released February 2022, accessed 21/6/2023.
[49] AIHW, “Youth detention population in Australia 2022”, 13/12/2022, accessed 21/6/2023.
[51] ibid.
[53] ABS, Prisoners in Australia, 2022, released 24/2/2023, accessed 20/6/2023.
[54] S Jamieson et al, “Aboriginal mothers are incarcerated at alarming rates — and their mental and physical health suffers”, The Conversation, May 2019, accessed 21/6/2023.
[55] ibid.
[56] S Yeong, “An evaluation of the Suspect Target Management Plan (Revised)”, BOSCAR, Crime and Justice Bulletin, No 233, February 2021, pp 10, 18–19, accessed 21/6/2023.
[57] Some of the information for the original draft of this chapter issued in 2006 was drawn from S Fryer-Smith, Aboriginal Benchbook for Western Australian Courts, 2nd edn, 2008, AIJA, accessed 16/6/2023; and the Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, 2016, Supreme Court of Queensland Library, Brisbane, accessed 16/6/2023.
[58] Some First Nations people who come from NSW call themselves other names, such as “Gooris” or “Murdis”. First Nations people resident in NSW who come from other parts of Australia may call themselves other names, depending on the part of Australia they come from.
[59] See ibid.
[60] ALRC, Pathways to justice — inquiry into the incarceration rate of Aboriginal and Torres Strait Islander people, ALRC Report 133 (Final Report), 2018, [2.92]–[2.100], accessed 16/6/2023. See also The Healing Foundation, Make healing happen: it’s time to act, Report, May 2021, p 55, accessed 16/6/2023.
[61] American Psychiatric Association, Diagnostic and statistical manual of mental disorders (DSM-5), 2013.
[62] For information and a visual map of known massacre sites in Australia compiled by the University of Newcastle Colonial Frontier Massacres Project team, see https://c21ch.newcastle.edu.au/colonialmassacres/, accessed 16/6/2023. There are 250 known sites in Australia currently mapped.
[63] Northern Territory v Griffiths [2019] HCA 7 at [230].
[64] Epigenetics refers to the process by which gene expression is inhibited or enhanced, ie switched on or off. DNA methylation is the attachment of methyl groups to the DNA molecule. When methyl groups are attached to the promoter, they typically act to repress gene transcription: N Youssef, L Lockwood, et al, “The effects of trauma, with or without PTSD, on the transgenerational DNA methylation alterations in human offsprings” (2018) 8 Brain Sci 83, accessed 16/6/2023. See also A Kuffer, A Maercker and A Burri, “Transgenerational effects of PTSD of traumatic stress: do telomeres reach across the generations?” (2014) 3(3) Journal of Trauma & Treatment, accessed 16/6/2023.
[65] For more information on intergenerational trauma, see V Edwige and P Gray, “Significance of culture to wellbeing, healing and rehabilitation”, Bugmy Bar Book Project Committee Expert Report, 2021, accessed 16/6/2023. This Report explores the concept of social and emotional wellbeing for Aboriginal and Torres Strait Islander people, the relationship between culture and healing, and the impact of imprisonment.
[66] AIHW, “Children living in households with members of the Stolen Generations”, 2019, accessed 16/6/2023.
[67] ibid pp 13–15.
[68] M Salter et al, “A deep wound under my heart: constructions of complex trauma and implications for women’s wellbeing and safety from violence”, Research Report, Issue 12/2020, ANROWS, p 27, accessed 13/6/2023.
[69] House of Representatives, Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing time — time for doing, report into Indigenous youth in the criminal justice system, June 2011, at [2.5], [2.6], accessed 13/6/2023. For an overview of the impact of colonisation, see for example, P Dudgeon, H Milroy and R Walker (eds), Working together: Aboriginal and Torres Strait Islander mental and health and wellbeing principles and practice, 2nd edn, Australian Government Department of Prime Minister and Cabinet, 2014, Chapters 1, 6, 17, 30, accessed 24/5/2023.
[70] For more information about First Nations history, experience and interaction with the law since white settlement see, for example, the many books and articles written by Henry Reynolds and Chris Cunneen — for instance, C Cunneen, The impact of crime prevention on Aboriginal communities, 2001; and Human Rights and Equal Opportunity Commission, Bringing them home: report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families, above n 21.
[71] See for example P Hora, “The trauma-informed courtroom”, International Society for Therapeutic Jurisprudence, accessed 16/6/2023.
[72] OCHRE, NSW Government Plan for Aboriginal affairs: education, employment & accountability, accessed 16/6/2023.
[73] See further, J Korff, “Explainer: Uluru Statement from the Heart”, Creative Spirits, last updated 21/12/2023, accessed 16/6/2023.
[74] The largest source of migration to Australia in the last 200 years has been from the UK and Ireland, creating a distinct Anglo-Celtic Australian culture. The term “Anglo-Celtic Australian” has been used throughout this section to refer to this culture or to Australians from UK or Irish backgrounds.
[77] [2019] HCA 7 at [230].
[78] Common Ground, “Acknowledgement of Country”, last updated 12/4/2023, accessed 1/8/2023.
[80] ibid.
[81] The First Nations mortality rate is 1.6 times higher than for non-Indigenous people: AIHW, “Deaths in Australia”, last updated 9/6/2022, accessed 16/6/2023.
[82] See D Eades, Aboriginal ways of using English, Aboriginal Studies Press, Canberra, 2013; D Eades, “Communicating with Aboriginal people in NSW” (2008) 20(10) JOB 85; D Eades, Courtroom Talk and Neocolonial Control, Mouton de Grutyer, Berlin, 2008; D Eades, “Telling and retelling your story in court: questions, assumptions and intercultural implications” (2008) 20 Current Issues in Criminal Justice 209.
[83] F Gale, “Introduction”, in F Gale (ed), Women’s Role in Aboriginal Society, 3rd edn, 1978, Australian Institute of Aboriginal Studies, Canberra, p 1.
[84] See L Behrendt, “Aboriginal women and the criminal justice system” (2002) 14(6) JOB 41 at 42.
[85] Kimberley Aboriginal Law and Culture Centre, New legend: a story of law and culture and the fight for self-determination in the Kimberley, Fitzroy Crossing, Western Australia, 2006, p 15.
[86] This information is drawn from B Thomas, Strengthening community justice: some issues in the recognition of Aboriginal customary law in New South Wales, Aboriginal Justice Advisory Council Discussion Paper (archived site), accessed 16/6/2023. For further information about Aboriginal Customary Laws, see Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, ALRC Report No 31, 1986, Canberra, accessed 16/6/2023; M Dodson AM, “Customary law and the sentencing of Aboriginal offenders” (2008) 20(5) JOB 37; Law Reform Commission of Western Australia, Aboriginal Customary Laws; the interaction of WA law with Aboriginal law and culture, Project No 94, Final Report, Perth, 2006, accessed 16/6/2023.
[87] See ALRC, Pathways to justice — inquiry into the incarceration rate of Aboriginal and Torres Strait Islander people, above n 60 at [6.1]. See also, Annual Reports and other information published by the Anti-Discrimination Board of NSW and the Australian Human Rights and Equal Opportunity Commission.
[88] Aboriginal Languages Act 2017.
[89] Aboriginal Languages Bill 2017, Explanatory note.
[90] S Smit, “NSW begins Aboriginal languages project”, National Indigenous Times, 10/4/2021, accessed 16/6/2023.
[91] S Jenkins, “New Closing the Gap targets aim to up number of Aboriginal and Torres Strait Islander languages spoken, reduce incarceration and suicide rates”, The Mandarin, 30/7/2020, accessed 16/6/2023.
[92] The matter was originally heard by a magistrate in the Children’s Court, who declined to make the orders. The appeal in the Supreme Court in TR v Constable Cox [2020] NSWSC 389 was dismissed. This is the proceeding appealing against the Supreme Court decision.
[93] JCDI, The path to justice: Aboriginal and Torres Strait Islander womenʼs experience of the courts, 2016, accessed 16/6/2023.
[94] JCDI, The path to justice: migrant and refugee women’s experience of the courts, 2016, accessed 16/6/2023.
[95] ALRC, Pathways to Justice — inquiry into the incarceration rate of Aboriginal and Torres Strait Islander people, above n 60, Recommendation 4.
[96] KPMG, Maranguka Justice Reinvestment Project: impact assessment, 2018, p 6, accessed 22/5/2023.
[97] www.justreinvest.org.au/about, accessed 16/6/2023.
[99] NSW Ombudsman, OCHRE Review report, October 2019, p 18, accessed 16/6/2023.
[100] See Media Release and fact sheet, “Pilot of specialist approach for sentencing Aboriginal offenders”, 22/11/2021, accessed 16/6/2023. See also D Yehia, “Introducing the Walama List Pilot at the District Court of NSW” (2021) 33 JOB 114.
[101] ibid.
[102] See statistics at 2.1 derived from the NSW Bureau of Crime Statistics and Research and the ABS.
[103] For more information about MERIT, and other diversionary programs, see JIRS under “Diversionary Programs”. For a list of national diversionary programs and analysis of these, see “Diverting Indigenous offenders from the criminal justice system”, Resource Sheet no 24, December 2013, accessed 16/6/2023.
[104] Available on JIRS, “Diversionary Programs”, accessed 16/6/2023.
[105] See further “Strategic innovations”, accessed 16/6/2023.
[106] 2018 data supplied by the NSW Bureau of Crime Statistics and Research, Reference: sr18-16315, June 2019, based on NSW Police and NSW criminal court data. See also, I Klauzner and S Yeong, “What factors influence police and court bail decisions?”, BOCSAR, Crime and Justice Bulletin, No 236, March 2021, p 21, accessed 16/6/2023.
[107] See ALRC, Pathways to justice — inquiry into the incarceration rate of Aboriginal and Torres Strait Islander Peoples, above n 60 at 5.41–5.55.
[108] Section 20A(2); Div 3, Bail Act 2013. Section 20A(2) Bail Act provides, inter alia, a bail condition may “only” be imposed if it is “reasonably necessary to address a bail concern”, “is reasonable and proportionate” and “is no more onerous than necessary”.
[109] R v Connor Fontaine (a pseudonym) [2021] NSWSC 177 at [7].
[110] See for example Gray v R [2020] NSWSC 390 at [22] where the Aboriginal applicantʼs ties to community and country were recognised as a factor in granting bail with the condition the applicant reside with his grandmother in the community. See also the comments in R v Brown [2013] NSWCCA 178 at [34].
[111] (2013) 249 CLR 571.
[112] [2015] NSWSC 2112.
[113] ibid at [3].
[114] See Bail Act 2013 s 31: the bail authority may take into account evidence or information considered credible or trustworthy in the circumstances. It was noted in R v Brown [2013] NSWCCA 178 at [35] (decided under the former Bail Act 1978): “In the cases of Aboriginal accused, particularly where the applicant for bail is young, alternative culturally appropriate supervision, where available, (with an emphasis on cultural awareness and overcoming the renowned anti-social effects of discrimination and/or an abused or disempowered upbringing), should be explored as a preferred option to a remand in gaol.” Bail was refused in this case as, inter alia, no culturally appropriate alternative supervision was proposed or available.
[115] DPP(NSW) v PH [2022] NSWSC 1245 at [45] re a detention application founded on s 22B of the Bail Act where the Aboriginal applicantʼs detention would have prevented him attending his grandfather’s funeral.
[116] Bugmy Bar Book, “Significance of funeral attendance and Sorry Business for Aboriginal and Torres Strait Islander peoples”, March 2023, accessed 5/5/2023.
[117] D Eades, Aboriginal ways of using English, above n 82, Ch 7. Dr Eades comments that the increasing awareness of First Nations ways of using English only sometimes results in more equal delivery of justice to First Nations people: at pp 118–119 and more research into this area is required. See also D Eades, “Communicating the right to silence to Aboriginal suspects: lessons from Western Australia v Gibson” (2018) 28 JJA 4.
[118] University of NSW, “Access to justice in interpreted proceedings: the role of judicial officers”, accessed 16/6/2023.
[119] See for example, Fox v Percy (2003) 214 CLR 118 at [31]; Elzahed v State of NSW (2018) 97 NSWLR 898 at [43]–[47]; State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at [89]. See also L Re, “Oral evidence v written evidence: the myth of the ‘impressive witness’” (1983) 57 ALJ 679; M Kirby, “Judging: reflection on the moment of decision” (1999) 4 TJR 189 and 193–194.
[120] The information in this box is drawn from the Aboriginal Benchbook for Western Australian Courts, above n 57, Ch 5; and the Equal Treatment Benchbook, above n 57, Ch 9, which in turn are both largely drawn from the writings and research of Dr Diana Eades and information prepared for the NSW Department of Public Prosecutions by B Thomas and G Wallace. (See “Further Reading” at 2.5). See also Australasian Institute of Judicial Administration Inc, Bench Book for Children Giving Evidence in Australian Courts, 2009 (updated 2020), at [2.11], accessed 16/6/2023.
[122] Dr Diana Eades describes the Aboriginal tendency to “gratuitous concurrence” as a cultural trait that can be exploited or misunderstood in courtroom proceedings. D Eades, Aboriginal ways of using English, above n 82, p 122.
[123] Aboriginal Benchbook for Western Australian courts, above n 57, p 5:7, para 5.3.1, Equal Treatment Benchbook, above n 57, p 113, citing Queensland Department of Justice and the Department of Aboriginal and Torres Strait Islander Policy, Aboriginal English in the Courts, GoPrint, Brisbane, 2000 at 8.
[124] S Fryer-Smith, ibid, p 5:7, para 5.3.1.
[125] Note the concerns of the NSWLRC in its Jury Directions in Criminal Trials, Report 136, 2012, p 110, where the Commission comments that “providing a generic set of directions at the commencement of the trial, when it is known that Aboriginal people will be giving evidence, may be inappropriate or unnecessary for the particular case … More research is required to ensure that such directions are applied appropriately in individual cases. Indeed, there is a danger that such directions, if applied in cases where the circumstances do not require them, may be regarded as paternalistic or racist or potentially inimical to a fair trial”.
[126] D Eades, Aboriginal ways of using English, above n 82; D Eades, “Aboriginal English in Courts” (1994) 1(4) TJR 367; D Eades, “Interpreting Aboriginal English in the legal system”, paper presented at the Proper True Talk National Forum, Alice Springs, October 1995, in Commonwealth Attorney-General’s Department, Report of Proper True Talk National Forum: Towards a National Strategy for Interpreting in Aboriginal and Torres Strait Islander Languages, 1996, Canberra, pp 57–68; D Eades, “Communicating with Aboriginal people in NSW” (2008) 20(10) JOB 85; D Eades, Courtroom Talk and Neocolonial Control, Mouton de Grutyer, Berlin, 2008; D Eades, “Telling and retelling your story in court: questions, assumptions and intercultural implications” (2008) 20 Current Issues in Criminal Justice 209. See also, University of NSW, “Access to justice in interpreted proceedings: the role of judicial officers”, accessed 16/6/2023.
[127] The information in this box is drawn from the Aboriginal Benchbook for Western Australian Courts, above n 57, Ch 5; and the Equal Treatment Benchbook, above n 57, Ch 9.
[130] M Triggiano, “Childhood trauma: essential information for courts,” Wisconsin Association of Treatment Court Professionals, 2015.
[131] Section 41 Evidence Act 1995.
[132] Lacey (a pseudonym) v Attorney General for NSW [2021] NSWCA 27 at [119].
[133] ibid at [25]; [45]; [119].
[134] ibid at [31]; [41]; [85].
[135] Note that s 23A(3) Crimes Act 1900 provides that the effects of “self-induced intoxication”, as defined in s 428A Crimes Act 1900, are to be disregarded for the purpose of determining whether the accused, by reason of this section, is not liable to be convicted of murder.
[136] See also McKenzie v McKenzie [2023] SASC 71: while the nature and closeness of the intestate deceased’s relationship with his only adult child was determined to be “of the utmost importance”, the child’s wishes needed to be balanced with evidence regarding the deceased’s wishes concerning a location for burial: at [61].
[137] G Lindsay, “Indigenous estate distribution orders”, Ngara Yura Program presentation, 1 March 2018, p 6, accessed 16/6/2023.
[138] Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2002—, Sydney, accessed 13/6/2023.
[139] Judicial Commission of NSW, Local Court Bench Book, 1988—, Sydney, accessed 13/6/2023.
[140] See also Judicial Commission of NSW, Sentencing Bench Book, 2006—, Sydney at [2-200], accessed 16/6/2023.
[141] See Pt 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) entitled “Victim Impact Statements” and the Charter of Victims Rights (Pt 2 Div 2 Victims Rights and Support Act 2013 which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available to the offender’s legal representative to read, or the court may provide supervised access to an unrepresented offender. The offender must not be allowed to retain, copy, disseminate or transmit images of the statement: s 30G Crimes (Sentencing Procedure) Act 1999.
[142] In 2019, 23% of MERIT participants identified as Aboriginal. The program reports positive outcomes for participants in the areas of frequency of alcohol and drug use, psychological distress and criminal justice outcomes, and MERIT completers were less likely to reoffend when compared to program non-completers: NSW Government, Magistrates early referral into treatment program 2019 Annual Report, 2019, pp 9–10, accessed 5/5/2023.
[143] For an example of a culturally-focused residential diversionary program aiming to reduce reoffending and enhance skills, see the Balund-a (Tabulam) Program for male offenders over 18.
[144] See ALRC, Pathways to justice — inquiry into the incarceration rate of Aboriginal and Torres Strait Islander Peoples, above n 60, Recommendations 7–1, 7–2 and 7–3 regarding the need for community-based sentencing options to be widely available (particularly to those living in remote areas), culturally appropriate, flexible, and tailored to support the individual offender’s needs. See also “7. Community-based sentences”, pp 229–272.
[145] Principle G in R v Fernando (1992) 76 A Crim R 58; approved by the High Court in Bugmy v The Queen (2013) 87 ALJR 1022 at [39].
[146] (1992) 76 A Crim R 58 at 62–63.
[147] (2013) 249 CLR 571.
[148] Bugmy v The Queen (2013) 249 CLR 571 at [41]. See also the judgment of Kirby P in R v Russell (1995) 84 A Crim R 386 at 392–394, where he discussed the implications for offending by young Aboriginal people of various health issues, particularly hearing disabilities, and the relevant literature on that topic. See also, R v Henry (1999) 46 NSWLR 346; at [10]–[11]; and Law Reform Commission of NSW, Sentencing Aboriginal Offenders, Report No 96, 2000, Ch 2, accessed 13/6/2023. For a useful overview of case law dealing with recognising Aboriginal disadvantage in sentencing, and the relationship between the objective and subjective character of offending, see S Norrish, “Sentencing Aboriginal offenders: not enough ‘judicial notice’?”, paper given to the Judicial Conference of Australia Colloquium, Sydney, 13/10/2013, accessed 13/6/2023.
[149] See JIRS under “Diversionary Programs” for contact information.
[150] See D Dick, “Circle Sentencing of Aboriginal Offenders: Victims Have a Say” (2004) 7(1) TJR 57, and note its final words at 72: Finally, I’ll leave you with the words of one of the elders, I think they are quite significant. He said: “This is not white man’s law anymore, it’s the people’s law”. See also Judge Nicholson SC, “Circle Sentencing is a Success” (2005) 17(6) JOB 47, Judicial Commission of NSW; R Lawrie, et al, Circle Sentencing in NSW: A review and evaluation, 2003, Aboriginal Justice Advisory Council; L Trimboli, An Evaluation of the NSW Youth Justice Conferencing Scheme, 2000, New South Wales Bureau of Crime Statistics and Research, the NSW Attorney General’s Department.
For a good summary of circle sentencing in Australia, see A Hennessy, “Aboriginal sentencing practices in Australia”, paper presented at the International Society for Reform of the Criminal Law Conference, Brisbane, July 2006. See also E Marchetti and K Daly, “Aboriginal Courts and Justice Practices in Australia” (2004) 277 Trends and Issues in crime and criminal justice, Australian Institute of Criminology.
For an analysis of the impact of circle sentencing on recidivism, see J Fitzgerald, “Does circle sentencing reduce Aboriginal offending?” (2008) 115 Crime and Justice Bulletin, NSW Bureau of Crime Statistics and Research, accessed 13/6/2023. Following the publication of the BOCSAR study, Dr Don Weatherburn urged the State Government to strengthen its commitment to resourcing the circle courts: “Circle Sentencing Evaluation”, Media Release, 16 July 2008.
[151] Judicial Commission of NSW, Circle Sentencing in NSW (video), Sydney, 2009, accessed 16/6/2023.
[152] NSW Law Reform Commission, Sentencing Aboriginal Offenders, Report 96, 2000, p 63, accessed 16/6/2023.
[153] See for example the Northern Territory CCA decisions of R v Minor (1992) 79 NTR 1; Jadurin v R (1982) 44 ALR 424. In relation to “extracurial” punishment and its relevance to sentencing, see R v Allpass (1993) 72 A Crim R 561 at 567; R v Daetz [2003] NSWCCA 216; R v Holden (unrep, 28/7/97, NSWCCA) at [5]. See also the Sentencing Bench Book, above n 140, at [10-520]. For further consideration of customary law and its relevance to Aboriginal persons, see NSW Law Reform Commission, Sentencing Aboriginal Offenders, Report 96, 2000, ch 3, accessed 13/6/2023. Note that in sentencing for Commonwealth offences, cultural practices cannot be taken into account in mitigation or aggravation of the seriousness of criminal offending.
[154] Section 16A(2A) Crimes Act 1914.
[155] Nationally, Aboriginal and Torres Strait Islander people are over-represented as fine recipients and are less likely than their non-Indigenous counterparts to pay a fine at the time of issue. Aboriginal women are particularly disproportionately affected: ALRC, Pathways to justice — inquiry into the incarceration rate of Aboriginal and Torres Strait Islander Peoples, above n 60, pp 387–389.
[156] ibid pp 404–405. The Work and Development Order (WDO) scheme is a fine reduction program for disadvantaged people. It allows eligible people to reduce their fine debt by undertaking unpaid work, courses, treatment programs and other activities with an approved organisation or registered health practitioner. For more information about WDO’s, and other diversionary programs, see JIRS under “Diversionary Programs”.
[157] The Fernando principles was written by his Honour Judge Stephen Norrish QC, District Court of NSW. It has been updated by Judicial Commission staff. See also the Hon S Rothman AM, “The impact of Bugmy and Munda on sentencing Aboriginal and other offenders” (2014) 26 JOB 17 and Judicial Commission, Sentencing Bench Book, Special Bulletin No 4, October 2013.
[159] (1992) 76 A Crim R 58 at 62–63 per Wood J. They were further explained in R v Hickey (unrep, 27/9/94, NSWCCA); Stone v R (1995) 84 A Crim R 218 at 221–223; R v Ceissman [2001] NSWCCA 73, especially at [29]–[33]; R v Pitt [2001] NSWCCA 156 at [19]–[21] and repeated in R v Fernando [2002] NSWCCA 28 at [64]–[67], per Spigelman CJ.
[160] (unrep, 14/11/97, NSWSC) at 10.
[161] See the earlier decisions of the NSWCCA in R v Morgan (2003) 57 NSWLR 533 at [21]–[22] and R v Newman (2004) 145 A Crim R 361 at [66], [68] which suggested the Fernando principles are confined to persons who come from remote areas.
[162] R v Bugmy [2012] NSWCCA 223.
[163] V Edwige and P Gray, Significance of culture to wellbeing, healing and rehabilitation, Bugmy Bar Book Project Committee Expert Report, 2021, accessed 16/6/2023.
[164] at [82].