Aboriginal people

2.1 Some statistics

  • Population:[1]

    • Based on the last census, the estimated resident population of NSW Aboriginal people was 265,685 (3.4%) of the total 7.73 million residents of NSW.[2] By 2026, the NSW Aboriginal population is expected to grow to 282, 962.[3]

    • More than 68% of Aboriginal people live in NSW, Queensland and Victoria while Western Australia and the Northern Territory contribute only 22% of the national Aboriginal population.[4]

  • Language:[5]

    • Only 1% of Aboriginal NSW residents speak an Aboriginal or Torres Strait Islander language at home.

    • Only 65 Aboriginal NSW residents say they cannot speak English well; a further 27 Aboriginal NSW residents do not report the level of their English language proficiency.

  • Education:

    • Aboriginal retention to Year 12 steadily increased over the decade 2006–2016, from 32% to 47% across Australia. Aboriginal retention rates remain considerably lower than those for non-Aboriginal school students but the disparity between the two groups is slowly lessening. Aboriginal students were still much less likely than non-Aboriginal students to progress to the final year of schooling in 2016.[6]

    • Aboriginal people aged 20 to 64 years who did not have post-school qualifications decreased from 58% to 50% between 2011 and 2016.[7]

    • From 2008 to 2018, the gap (ie the difference between the proportions of Aboriginal and non-Aboriginal students achieving at or above the national minimum standard) in reading for school-aged children in year 3 has narrowed, falling 4.2 percentage points; in year 5 falling by 4.5 percentage points. For numeracy students in year 5 the gap has narrowed by 6.3 percentage points. From 2016 to 2017, numeracy and reading rates did not significantly improve in any year group.[8]

    • In 2018, a lower proportion of Aboriginal students achieved the national minimum standard than non-Aboriginal students in reading and numeracy in all years assessed (Year 3, 5, 7, and 9). In year 3, 8.5% of Indigenous students were below the national minimum standard in reading as against 1.6% of non-indigenous students, and this gap was greater with 16.8% of Year 9 Indigenous students falling below the minimum standard as opposed to 3.2% of non-indigenous students.[9]

  • Employment:

    • In 2016, 46% of Aboriginal adults in NSW (15 years and over) were employed, compared with 59% of non-Aboriginal people.[10]

    • In 2016, the unemployment rate in NSW for Aboriginal and non-Aboriginal people was 15% and 6% of the total labour force, respectively. Unemployment amongst Aboriginal people was highest for 18-24 year olds, at 24%.[11]

    • The Community Development Program (CDP), which commenced on 1 March 2019 funded by the 2018–19 Federal Budget, provides remote employment and community development services. The revised program has introduced flexible hours, reduced participation hours up to 20 hours per week, established a capital investment fund, changed the provider payment model, and subsidised 1,000 new jobs for CDP participants.[12]

    • There are about 35,000 CDP participants in Australia and 83% are Indigenous. As a condition of income support, remote area participants must engage in up to 25 hours of work for the dole, five days a week.[13]

    • In 2014-15, the median weekly household income for Aboriginal households in NSW was $550, compared with $850 for non-Aboriginal households.[14]

  • Housing:[15]

    • 34% of Aboriginal NSW residents live in dwellings they own or are buying, compared with 67% of the total population.

    • In NSW, 64% of Aboriginal people live in rented dwellings compared to 30% of non-Aboriginal people. In NSW 18% of Aboriginal people rented through Aboriginal Housing Organisations, or in other community housing.

    • In NSW the proportion of Aboriginal adults living in overcrowded homes is 14% compared to 7% for non-Aboriginal adults.[16]

  • Care and protection

    • Between 1910 and 1969, official government policies moved from “protection”, which saw Aboriginal people placed in missions and reserves, to assimilation. These policies led to the forced removal of generations of Aboriginal 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.[17] See below at 2.2.2. It has been estimated that more than 6,200 Aboriginal children in NSW were removed in this period.[18]

    • In NSW as at 30 June 2018, Aboriginal children were placed in out-of-home care at 11 times the rate for non-Aboriginal children (6,766 Aboriginal children out of 17,387 children). Nationally, in 2017–18, 65% of Aboriginal children were placed with relatives/kin, with other Aboriginal caregivers, or in Aboriginal residential care.[19] These informal arrangements do and will have multiple effects on the relative/kin caregivers, including financial, physical and mental health.

  • Health:

    • Aboriginal people are twice as likely to report their health as “fair” or “poor” than non-Aboriginal people — 31% compared to 14%; with NSW having a higher proportion than Australia — 32% compared with 31%.[20]

    • Aboriginal people in NSW are almost one-and-a-half times more likely to have a disability or long-term health condition than non-Aboriginal people — 53% compared with 29%.

    • About 6.6% of Aboriginal people in NSW need assistance with self-care, mobility or communication.[21]

    • The leading causes of mortality and morbidity in Aboriginal people are coronary heart disease, anxiety disorders and diabetes, with coronary heart disease the leading disease outcome attributable to tobacco use.[22]

    • There is increasing recognition of the impact of trans or intergenerational trauma on Aboriginal people as causative of poor physical and mental health outcomes. See 2.2.2 below.

    • The life expectancy of Aboriginal males in NSW is 8.6 years less than the life expectancy of non-Aboriginal males and 7.8 years less for females. In remote areas, life expectancy for Aboriginal men is 65.9 and women 69.6 years.[23]

    • Aboriginal people are 10 times more likely to suffer hearing impairment than the general population, ie ear diseases and hearing loss.[24] In R v Russell (1995) 84 A Crim R 386 at 393, Kirby P noted that hearing loss is an endemic problem amongst Australian Aboriginals and noted the connection between hearing loss, Aboriginality and the criminal justice system.

    • Between 2015 and 2017, Aboriginal infant mortality was 4.5 per 1,000 for Aboriginal infants, compared with 3.1 per 1,000 for non-Aboriginal infants.[25]

  • Violence:

    • There is increasing recognition in the law and justice sector of the impact of trans and intergenerational trauma on Aboriginal people as causative of disproportionate interactions in the criminal justice system. See 2.2.2 below.

    • Between 2017 and 2018, Aboriginal victims of assault increased in NSW (up 4% of 171 victims) to 4,445 victims.[26]

    • In 2018, there were more female Aboriginal victims of assault than male victims. 2,764 females (62%) compared to 1,671 males in NSW.[27]

    • Aboriginal 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 Aboriginal victims) of whom were killed by intimate partners,[28] compared with 44.1% (64 of 145 female victims) of non-Aboriginal victims.[29]

    • Aboriginal men are about 8 times more likely and Aboriginal women are 9 times more likely to be domestic assault offenders, than non-Aboriginal men and women.[30]

    • 11% of alleged offenders of sexual assault and child sexual assault offences were Aboriginal.[31]

    • 11.8% of all NSW sexual abuse victims below 15 were Aboriginal.[32] Aboriginal children make up 4% of children in NSW.[33]

    • 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”.[34] Trauma therapists and leading researchers such as Jenny Atkinson et al consider that these indicia of Aboriginal disadvantage which manifest as inter and transgenerational trauma are symptoms of Aboriginal post-colonial history (see further 2.2.2.)[35]

    • Aboriginal women are almost five times more likely than non-Aboriginal women to be victims of domestic assault (2,071 per 100,000 population compared to 434 per 100,000). Aboriginal male offending is almost eight times higher than non-Aboriginal male offending (2,800 per 100,000 population compared to 359 per 100,000).[36]

  • Prosecutions, bail and imprisonment:

    • 3.9% of Aboriginal people appearing before the NSW Local Court appear on at least one offensive language or behaviour charge[37] — this represents almost 35.6% of such charges.[38]

    • Aboriginal people were 4 times more likely than the NSW average to commit a murder, 10 times more likely to commit robbery, and 12 times more likely than the NSW average to be implicated in a motor vehicle theft.[39]

    • Aboriginal defendants are more likely to be refused bail in NSW courts — 14.5% compared with 6.9% for non-Aboriginal defendants. Aboriginal 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-Aboriginal defendants. Yet 32.9% of Aboriginal people who were remanded in custody after their bail was refused do not receive custodial sentences.[40]

    • Aboriginal juveniles account for 48% of all juveniles in detention centres, and are imprisoned at a rate approximately 17 times that of the non-Aboriginal population.[41]

    • In December 2018, Aboriginal women accounted for 33.1% of the adult female prison population. Aboriginal men accounted for 24% of the adult male prison population. Overall, Aboriginal people remain grossly over-represented in NSW prisons. The full-time Aboriginal prisoner population was 24.5% of the prison population or 3,232 out of a total of 13,165 full-time inmates. This means that Aboriginal people are approximately 10 times more likely to be incarcerated in NSW than non-Aboriginal people.[42]

    • Between 2008 and 2018, the Aboriginal imprisonment rate rose by 45% (nation-wide) compared to the non-Aboriginal rate of a 29% increase. In NSW, the rate of Aboriginal imprisonment increased by 32% from approximately 1,600 Aboriginal persons per 100,000 to 2,137 Aboriginal persons per 100,000. This contrasts with a rate change of 162 to 184 for non-Aboriginal persons per 100,000 for the same period. [43]

    • As at 30 June 2018, Aboriginal imprisonment rates in the Northern Territory (84%), Western Australia (39%) and Queensland (31%) are higher than NSW (24%). South Australia (24%), Victoria (9%), the ACT (22%) and Tasmania (19%) are lower. [44]

    • In 2018, there were 28,456 appearances by Aboriginal people in NSW courts charged with a criminal offence. Their court appearance rate is therefore 7 times higher than the NSW population as a whole — 140,080 people.[45]

    • In 2018, across all NSW Criminal Courts (that is, Children’s, Local and Higher court jurisdictions) the number of Aboriginal people given a custodial sentence was 5,335. This was approximately 13 times higher than the overall rate of NSW people given a custodial sentence.[46]

2.2 Some general information[47]

2.2.1 Aboriginal people, Torres Strait Islander people, Kooris, Murris and other groups[48]

  • Australia has two Indigenous peoples with separate ethnic and cultural identities — Aboriginal people and Torres Strait Islander people.

  • Indigenous 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 Indigenous community of origin.

  • Many Aboriginal and Torres Strait Islander people in NSW have some non-Aboriginal/Torres Strait Islander ancestry.

  • An increasing number of people who originally identified as non-Aboriginal, or who were previously unaware of their Aboriginal ancestry, are proudly identifying as Aboriginal, and being accepted by the relevant Aboriginal/Torres Strait Islander community as Aboriginal and/or Torres Strait Islander.[49]

  • It is deeply offensive to Aboriginal people to refer to them as half-caste or half-blood, full-caste or full-blood — see also 2.3.3.2.

  • Most Indigenous people in NSW are Aboriginal, speak English or a form of English (Aboriginal English).

  • Many Aboriginal people, including Aboriginal people who otherwise reside in urban centers, continue to acknowledge and observe traditional laws and customs, and undertake traditional activities.

  • Many Aboriginal people who come from NSW call themselves “Kooris”. “Koori” means “man”, or “people” in many of the hundreds of Aboriginal languages originally spoken in NSW.

  • Some Aboriginal 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.

  • Some Aboriginal people from NSW and others from interstate call themselves other names.[50]

  • ATSI (an acronym for Aboriginal or Torres Strait Islander people) is often used by government services. Many Aboriginal people find this acronym offensive, particularly when used orally — see also 2.3.3.2.

  • Although most Aboriginal and Torres Strait Islander people in NSW live in mainstream urban or regional country town environments, many live within largely Aboriginal communities located within, near or on the edge of non-Aboriginal settlements. Note that many Aboriginal 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 Aboriginal people are somehow less Aboriginal than “traditional” Aboriginal people is offensive and unhelpful.

  • 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].

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.[51] 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.[52] The primary or distal cause of trauma for Aboriginal people was colonisation and attendant practices including massacres,[53] 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 Aboriginal people due to racism, prejudice, poverty and genetic poor health. Loss of connection to land is acknowledged as permanent and intergenerational.[54] 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.[55] Many Aboriginal (and non-Aboriginal) people consider that the statistics in 2.1 above are a direct result of intergenerational trauma and the way in which the non-Aboriginal community has largely refused to respect the validity of Aboriginal people’s prior claim to the land and has, over the years, in their view, attempted to assimilate or destroy Aboriginal 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.

Aboriginal people are vastly over-represented in Australia in the criminal justice system and this has been described as a “national disgrace”.[56]

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, Aboriginal 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-Aboriginal 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 Aboriginal cultural practices, values and ways of interrelating survived, but generally at great socio-economic cost, as illustrated at 2.1 above.[57]

Having a trauma-informed approach

The efficacy of a trauma-informed approach to working with Aboriginal 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.[58]

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.[59] While many Aboriginal 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 Aboriginal deaths in custody; mechanisms by which the diverse needs of Aboriginal people for land can be achieved; and mechanisms whereby recognition can be given to the past injustices and continuing inequality experienced by Aboriginal 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-Aboriginal community of the way the Aboriginal community views the overall impact of colonisation, or truth-telling. The many losses suffered by Aboriginal 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”. This has called for two reforms: 1) a constitutionally enshrined First Nations voice to federal Parliament and 2) a Makarrata Commission to oversee agreement-making between First Nations people with federal and State Governments and to provide a forum for truth telling about history.[60]

Truth telling is seen as essential to acknowledging the wrongs of the past and creating a path for reconciliation.

2.2.3 Cultural differences

Aboriginal 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 Aboriginal people follow Aboriginal cultural “norms”, there are many features of Aboriginal culture and values that are common to many Aboriginal people, irrespective of their particular tribal origin.

The main cultural and value differences between many Aboriginal people and people from non-Aboriginal backgrounds can be grouped as follows.

  • Collective, group-oriented identity — Aboriginal culture is a much more collective and co-operative culture than, for example, the Anglo-Celtic Australian[61] 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.

  • 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.[62] 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.

  • Connection to the land is central — Aboriginal people have a very strong sense of relationship to the land of their ancestors, based on Aboriginal 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.[63] An Aboriginal 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[64] for a description of the lay and anthropological evidence of connection to the land and the effects, under Aboriginal laws and customs, when country is harmed.

  • Respect for Aboriginal spirituality and culture is important — for example, “dreaming” stories or for Torres Strait Islanders “Tagai” stories, ceremonies, song, art and dance. Aboriginal education involves learning Aboriginal 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 Aboriginal languages. The Aboriginal Languages Act 2017 (NSW) was assented to on 24 October 2017, however is not yet in force. This Act 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 Aboriginal languages.

  • Individual material possessions are traditionally not highly prized — family and spiritual matters are more important.[65] Traditionally, many material possessions, including the home, are seen as community resources with community ownership.

  • Social behaviour is often public — rather than private. For example, many social events for Aboriginal and non-Aboriginal people alike, may commonly occur in public rather than privately.[66] Aboriginal 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.

  • In many Aboriginal 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 Aboriginal representatives what the practice in relation to this is in particular communities.

  • Experience of “sorry business” — Aboriginal people from a young age will be exposed to familial and community deaths proportionately more than people from Anglo-Celtic backgrounds.[67] “Sorry business” refers to the cultural practices and protocols associated with death.

  • Different communication abilities and styles — many Aboriginal people in NSW speak a form of Aboriginal English and have a different style of linguistic and body communication than non-Aboriginal people.[68] 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 Aboriginal 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.

  • Status of women — In pre-colonial Aboriginal societies, men and women performed well-understood roles — each having their important jobs to do, and their own set of cultural and spiritual practices.[69] 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, Aboriginal 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 Aboriginal 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.[70]

  • Impact of customary law — Aboriginal customary law is integral to Aboriginal culture. For Aboriginal people customary law is an “all encompassing reality”.[71] 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 Aboriginal communities act to solve their own problems and resolve disputes. Many Aboriginal 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 Aboriginal offenders are not doubly punished — that is, via the courts system and customary law.[72] Circle sentencing has been a positive initiative in that it enables full Aboriginal input from Aboriginal 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.

  • Racism, prejudice and discrimination — Most Aboriginal 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.[73]

    This may make some Aboriginal 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 possible impact of these cultural differences in court

Unless appropriate account is taken of the types of cultural differences listed in 2.2.2 above, and the statistics listed at 2.1 Aboriginal people may:

  • feel uncomfortable, resentful, fearful or overwhelmed

  • feel offended by what occurs in court

  • not be adequately understood, be able to get their point of view across and/or understand what is happening

  • feel that an injustice has occurred

  • in some cases be treated unfairly and/or unjustly.

Section 2.3, following, provides additional information and practical guidance about ways of treating Aboriginal people during the court process, so as to reduce the likelihood of these problems occurring.

2.2.5 National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait islander women and migrant and refugee women

The Judicial Council on Cultural Diversity (JCCD) 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 JCCD drew on the recommendations and findings of its two consultation reports — The Path to Justice: Access to Justice for Aboriginal and Torres Strait Islander Women[74] and The Path to Justice: Access to Justice for Migrant and Refugee Women.[75] Particular reference should be made to the suggestions at pp 7-21 of the Framework, available at https://jccd.org.au/wp-content/uploads/2017/09/JCCD_National_Framework.pdf.

2.2.6 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.[76] 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. 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.[77]

Further information about the project may be found on the Just Reinvest NSW website.[78]

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 Aboriginal 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 Aboriginal 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 Aboriginal communities.[79]

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.[80]

2.3 Practical considerations

2.3.1 Diversionary options

Aboriginal people are disproportionately represented in NSW prisons (reflecting national trends) and are more likely than non-Aboriginal people to be arrested for relatively minor offences.[81]

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 Aboriginal 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).[82] For further information about non-custodial alternatives, see the Sentencing Bench Book at [4-400] and the Aboriginal Services Unit fact sheets.[83]

For young Aboriginal 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.[84]

2.3.2 Bail

As indicated in 2.1 above, Aboriginal people appearing in NSW courts are more likely to be refused bail than non-Aboriginal people (14.5% Aboriginal people refused bail compared with 6.9% non-Aboriginal people).[85] Aboriginal 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-Aboriginal defendants. Conditions of bail can often have a disproportionately stringent impact on Aboriginal 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.

2.3.3 Language and communication

2.3.3.1 Background information

Aboriginal 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 Aboriginal speakers of English has shown how “linguistic factors can play a key role” in outcomes in the criminal justice process.[88] 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 Aboriginal 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, an Aboriginal 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.

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 Aboriginal 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,[89] but also our appearance, behaviour and body language is all heavily culturally-determined. How an Aboriginal 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 Aboriginal people who have had less contact with non-Aboriginal 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 an Aboriginal 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 Aboriginal 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 Aboriginal cultures. So, it is also important not to assume that everyone who is Aboriginal will behave in the same way, or to assess Aboriginal people who do not seem to follow general Aboriginal 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 Aboriginal people in NSW. Many use a form of Aboriginal English. In addition, many Aboriginal people have culturally different communication styles.

Yet, just the same as anyone else who appears in court, an Aboriginal 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 Aboriginal on any behaviour relevant to the matter(s) before the court

2.3.5 Aboriginal burial rights and estate distribution orders

Aboriginal 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 Aboriginal 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 an Aboriginal 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 Aboriginal 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].

Estate distribution orders

Part 4.4 of the Succession Act 2006 (NSW) provides for the distribution of an intestate Aboriginal 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 an indigenous 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 an Indigenous community or group.[103]

2.3.6 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 Aboriginal people to unfairly influence their judgment.

2.3.7 Sentencing, other decisions and judgment or decision writing — points to consider

2.3.8 The Fernando principles[120]

The so called Fernando principles, which involve a thoughtful analysis of sentencing in relation to particular Aboriginal offenders, have a resonance beyond the jurisdiction of NSW courts. They are taken up, for instance, in the Aboriginal Benchbook for Western Australian Courts,[121] 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,[122] 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 Aboriginal 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 the Aboriginal 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 Aboriginal 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 Aboriginal 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 Aboriginal 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 an Aboriginal 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,[123] 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 391–2. To recognise that background in an appropriate case for the purpose of sentence is neither discriminatory nor paternalistic.

2.3.9 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) 145 A Crim R 361 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 Court of Criminal Appeal in Kennedy v R [2010] NSWCCA 260. Simpson J in Kennedy at [53] commented that Fernando was not about sentencing Aborigines but about the recognition of social disadvantage, regardless of the offender’s ethnicity, that frequently precedes the commission of a crime. Simpson J also commented that social deprivation, resulting from alcohol consumption (or otherwise) is not confined to remote or rural communities (at [57]).[124]

On appeal to the NSWCCA,[125] 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 Aborigines: 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 an Aboriginal 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 Aboriginal 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].

2.4 Further information or help

  • Interpreting and translating services — see 3.3.1.3.

  • 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:

  • 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.

  • Office of the Director of Public Prosecution’s Aboriginal Witness and Assistance Officers — Ph: (02) 9285 8646

  • Victims’ Services’ Aboriginal Contact Line — Ph: 1800 019 123

  • 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 2630
    Nowra
    89 Plunkett Street
    Nowra NSW 2541
    Ph: (02) 4422 3255
    Fax: (02) 4422 3256
    Grafton
    18–26 Victoria Street
    Grafton NSW 2460
    Ph: (02) 6640 1400
    Fax: (02) 6640 1410
    Wagga Wagga
    19 Trail Street
    Wagga Wagga NSW 2650
    Ph: (02) 6932 7200
    Fax: (02) 6921 9340
    Armidale
    128 Dangar Street
    Armidale NSW 2350
    Ph: (02) 6772 5770
    Fax: (02) 6772 5771
    Dubbo
    23–25 Carrington Avenue
    Dubbo NSW 2830
    Ph: (02) 6882 6966
    Fax: (02) 6882 0726
    Wollongong
    PO Box 191
    Wollongong East NSW 2520
    Ph: (02)4225 7977
    Fax: (02) 4225 7979
     

     

  • NSW Native Title Services Ltd
    Level 1, 44-70 Rosehill Street
    Redfern NSW 2016
    Ph: (02) 9310 3188 or 1800 111 844
    web: http://www.ntscorp.com.au/

  • NSW Aboriginal Land Council
    33 Argyle Street
    Parramatta NSW 2150
    PO Box 1125
    Parramatta NSW 2150
    Ph: (02) 9689 4444
    Fax: (02) 9687 1234
    http://alc.org.au

  • Aboriginal Medical Service
    36 Turner Street
    Redfern NSW 2016
    Ph: (02) 9319 5823
    web: https://amsredfern.org.au/contact/

  • Tranby Aboriginal College
    13 Mansfield Street
    Glebe NSW 2037
    Ph: (02) 9660 3444
    www.tranby.edu.au

  • Nearest University — particularly if it has an Aboriginal Unit.

  • Local Aboriginal 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 22 October 2019.

Aboriginal Justice Advisory Council, Speak Out, Speak Strong, Inquiry into the needs of Aboriginal women in custody, 2003, accessed 22 October 2019.

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 22 October 2019.

Australasian Institute of Judicial Administration Inc, Bench Book for Children Giving Evidence in Australian Courts, 2009, Melbourne, accessed 22 October 2019.

Australian Bureau of Statistics, 2011 Census, at www.abs.gov.au, accessed 13 August 2013.

Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Social Survey, 2008 (ABS Cat No 4714.0.55.005), 2009, Canberra, at www.abs.gov.au, accessed 13 August 2013.

Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Australians, 2006 (ABS Cat No 4713.0), 2010, Canberra, at www.abs.gov.au, accessed 13 August 2013.

Australian Bureau of Statistics, Prisoners in Australia (ABS Cat No 4517.0), 2017, Canberra, at www.abs.gov.au, accessed 22 October 2019.

Australian Bureau of Statistics, “Aboriginal and Torres Strait Islander Home Ownership: a snapshot, 2006”, at www.abs.gov.au/ausstats/abs@.nsf/mf/4722.0.55.005, accessed 22 October 2019.

Australian Bureau of Statistics, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, 2010, (ABS Cat No 4704.0), at www.abs.gov.au/ausstats/abs@.nsf/mf/4704.0, accessed 22 October 2019.

Australian Bureau of Statistics, “Law and justice statistics – Aboriginal and Torres Strait Islander people: a snapshot, 2006”, at www.abs.gov.au/ausstats/abs@.nsf/mf/4722.0.55.003, accessed 22 October 2019.

Australian Institute of Health and Welfare, Aboriginal and Torres Strait Islander Health Performance Framework 2008 report: detailed analyses, accessed 22 October 2019.

Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander people: an overview 2011, accessed 22 October 2019.

Australian Institute of Health and Welfare, Children living in households with members of the Stolen Generations, 2019, accessed 2 April 2020.

Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, ALRC Report No 31, 1986, Canberra, accessed 22 October 2019.

Australian Law Reform Commission, Pathways to Justice — Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, ALRC Report 133, 2018, accessed 22 October 2019.

S Beckett, “The Bar Book project: presenting evidence of disadvantage”, Public Defenders Criminal Law Conference, 2019, accessed 12 November 2019.

L Behrendt, “Aboriginal women and the criminal justice system” (2002) 14(6) Judicial Officers’ Bulletin 41 at 42, accessed 22 October 2019.

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 October 2019.

Corrective Services NSW, “NSW Inmate Census 2011”, Statistical Publication No 38, November 2011, accessed 22 October 2019.

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 22 October 2019.

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 22 October 2019.

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.

J Fitzgerald and D Weatherburn, “Aboriginal victimisation and offending: The picture from police records”, Crime and Justice Statistics Bureau Brief, December 2001, at www.bocsar.nsw.gov.au/Documents/BB/bb17.pdf, accessed 22 October 201.

F Gale, “Introduction”, in F Gale (ed), Women’s Role in Aboriginal Society, 3rd edn, 1978, Australian Institute of Aboriginal Studies, Canberra.

D Higgins and K Davis, “Law and justice: prevention and early intervention programs for Indigenous youth”, AIHW, 2014, accessed 22 October 2019.

A Hennessy, “Indigenous Sentencing Practices in Australia”, paper presented at the International Society for Reform of the Criminal Law Conference, Brisbane, July 2006 at http://classic.austlii.edu.au/au/journals/QldJSchol/2006/102.pdf, accessed 22 October 2019.

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 22 October 2019.

Judicial Council on Cultural Diversity, “National framework to improve accessibility to Australian courts for Aboriginal and Torres Strait Islander women and migrant and refugee women”, accessed 22 October 2019.

M Kirby, “Judging: Reflections on the Moment of Decision” (1999) 4(3) TJR 189 and 193–4.

Law Council of Australia, “The Justice Project”, Final Report, 2018, accessed 22 October 2019.

Law Reform Commission of NSW, Sentencing Indigenous Offenders, Report No 96, 2000, Chapter 2, accessed 22 October 2019.

Law Reform Commission of Western Australia, The interaction of WA law with Aboriginal law and culture, Project No 94, Final Report, Perth, 2006, accessed 22 October 2019.

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 22 October 2019.

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 12 November 2019.

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.

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 22 October 2019.

Ombudsman NSW, Responding to child sexual assault in Aboriginal Communities, Sydney, 2012, accessed 22 October 2019.

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 October 2019.

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, accessed 22 October 2019.

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) at http://pandora.nla.gov.au/pan/25201/20080114-1107/customarylawDP.htm, accessed 22 October 2019.

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 22 October 2019.

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 22 October 2019.

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 October 2019.

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 13 contains information about how to send us your feedback.



[1] Australian Bureau of Statistics, 2016 Census, at www.censusdata.abs.gov.au, accessed 30 May 2018.

[2] Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians, June 2016 at https://www.abs.gov.au/ausstats/abs@.nsf/mf/3238.0.55.001, accessed 22 October 2019.

[3] Australian Bureau of Statistics, 2014 Estimates and Projections, Aboriginal and Torres Strait Islander Australians, 2001 to 2026, at http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/3238.02001%20to%202026?OpenDocument, accessed 22 October 2019. See also Understanding the increase in Aboriginal and Torres Strait Islander Counts at www.abs.gov.au/ausstats/abs@.nsf/mf/2077.0, accessed 22 October 2019.

[4] Creative Spirits, “Aboriginal population in Australia”, at www.creativespirits.info/aboriginalculture/people/aboriginal-population-in-australia, accessed 29 November 2019.

[5] Australian Bureau of Statistics, 2076.0 — Census of Population and Housing: “Characteristics of Aboriginal and Torres Strait Islander Australians”, 2016, at www.censusdata.abs.gov.au, accessed 30 May 2018.

[6] Australian Bureau of Statistics, 2071.0 — Census of Population and Housing: Reflecting Australia — stories from the Census, 2016, at www.abs.gov.au, accessed 30 May 2018.

[7] ibid.

[8] Based on the 2017 National Assessment Program: Literacy and Numeracy (NAPLAN) results in reading and writing for Aboriginal and non-Aboriginal students in years 3, 5, 7 and 9, at www.nap.edu.au, accessed 31 May 2018.

[9] Australian Curriculum, Assessment and Reporting Authority, 2019, NAPLAN results — Time series (Achievement of Students in Numeracy, by Indigenous Status, NSW, 2008–2018; Achievement of Students in Reading, by Indigenous Status, NSW, 2008–2018), at http://reports.acara.edu.au/Home/TimeSeries, accessed 22 October 2019.

[10] Australian Bureau of Statistics, 2016 Census of population and housing. Aboriginal and Torres Strait Islander Peoples Profile (catalogue number 2002.0) NSW, 2017 at www.censusdata.abs.gov.au/census_services/get product/census/2016/communityprofile/LGA12750?opendocument, accessed 22 October 2019.

[11] ibid.

[12] 2018-19 Budget: “Backing the economic aspirations of First Australians, Senator the Hon Nigel Scullion” at https://ministers.pmc.gov.au/scullion/2018/2018-19-budget-backing-economic-aspirations-first-australians, accessed 22 October 2019.

[15] Australian Institute of Health and Welfare, “Aboriginal and Torres Strait Islander health performance framework 2012 report: NSW”, p 74 at https://www.aihw.gov.au/reports/indigenous-health-welfare/indigenous-health-performance-framework-2012-nsw/data, accessed 22 October 2019.

[16] ibid, p 70.

[17] Australian Human Rights Commission, Bringing them home: report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families, 1997, at www.humanrights.gov.au/our-work/bringing-them-home-report-1997, accessed 17 July 2019.

[18] Creative Spirits, “A guide to Australia’s stolen generations” (drawing on research conducted by the Bringing them Home inquiry, ibid), at www.creativespirits.info/aboriginalculture/politics/stolen-generations/a-guide-to-australias-stolen-generations, accessed 22 October 2019.

[19] Australian Institute of Health and Welfare, Child protection Australia 2017-2018, Canberra, 2019, pp 49–55.

[20] Australian Institute of Health and Welfare, above n 15; Australian Bureau of Statistics, above n 14, accessed 31 May 2018, p 52.

[21] Australian Institute of Health and Welfare, above n 15, p 46; NATSSIS, at www.abs.gov.au, accessed 30 May 2018.

[22] 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.

[23] ABS, 3302.0.55.003 — Life Tables for Aboriginal and Torres Strait Islander Australians, 2015–2017, at www.abs.gov.au/ausstats/abs@.nsf/MediaReleasesByCatalogue/1A6806AB01AB38CDCA25835300141767?OpenDocument, accessed 17 June 2019.

[25] Productivity Commission, 2019, “Report on Government Services 2018”, E Health. Canberra: Productivity Commission. Table EA 34, Infant mortality rate by Indigenous status, three year average (per 1000 live births), at www.pc.gov.au/research/ongoing/report-on-government-services/2019/health, accessed 22 October 2019.

[26] As at 6 June 2019; Australian Bureau of Statistics, “4510.0 – Recorded Crime — Victims, Australia, 2018” at www.abs.gov.au, accessed 6 August 2019.

[27] ibid.

[28] An intimate partner includes spouse/partner, ex-spouse/ex-partner and boy/girlfriend (including ex-boy/girlfriend).

[29] Statistics relate to the period between 2014 and 2018. Source: unpublished data supplied by the NSW Bureau of Crime Statistics and Research, 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.

[30] ibid.

[31] Based on unpublished BOCSAR data for 2017 provided in June 2018.

[32] As at 6 June 2019; Australian Bureau of Statistics, “4510.0 — Recorded Crime — Victims, Australia, 2018” at www.abs.gov.au, accessed 6 August 2019.

[33] NSW Ombudsman, Responding to child sexual assault in Aboriginal communities, December 2012, p 83, at www.ombo.nsw.gov.au, accessed 22 October 2019, p 85.

[34] J Wood AO QC, Report of the Special Commission of Inquiry into Child Protection Services, 2008, Vol 1, p 109, at www.dpc.nsw.gov.au, accessed 22 October 2019.

[35] 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; J Atkinson, Trauma trails recreating song lines — the transgenerational effects of trauma in Indigenous Australia, Spinifex Press, 2002.

[36] BOCSAR, unpublished data 2018, Supplied by the NSW Bureau of Crime Statistics in July 2019.

[37] 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 “Review of the impact of Criminal Infringement Notices on Aboriginal communities”, accessed 18 July 2016.

[38] 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.

[39] These calculations are based on ABS population data from 2011 Census of Population and Housing (ABS 2011, Cat No. 2001.0) as this is the most recent population data collected for Aboriginal persons. Also, these figures are based on rates rather than solely on incident counts. Source: unpublished data supplied by the NSW Bureau of Crime Statistics and Research, June 2014, based on NSW police data.

[40] 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.

[41] Department of Juvenile Justice, “Young people in custody for 2016–2017”, accessed 6 June 2018.

[42] BOSCAR, unpublished data 2018, provided August 2019.

[43] ibid.

[44] ABS, 4517.0 Prisoners in Australia at https://abs.gov.au, accessed 10 October 2019.

[45] n 42, above.

[46] ibid.

[47] 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 18 July 2016; and the Supreme Court of Queensland, Equal Treatment Benchbook, 2005, Supreme Court of Queensland Library, Brisbane, accessed 18 July 2016.

[48] Some Aboriginal people who come from NSW call themselves other names, such as “Gooris” or “Murdis”. Aboriginal 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. “Aboriginal” is used throughout this section to refer to the original people of NSW.

[49] Australian Bureau of Statistics, above n 1.

[50] See n 48.

[51] ALRC, Pathways to justice — inquiry into the incarceration rate of Aboriginal and Torres Strait Islander people, ALR Report 133 (Final Report), 2018, [2.92]–[2.100] at www.alrc.gov.au/wp-content/uploads/2019/08/final_report_133_amended1.pdf, accessed 22 October 2019.

[52] American Psychiatric Association, Diagnostic and statistical manual of mental disorders (DSM-5), 2013.

[53] 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 17 October 2019. There are 250 known sites in Australia currently mapped.

[54] Northern Territory v Griffiths [2019] HCA 7 at [230].

[55] 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 at www.ncbi.nlm.nih.gov/pmc/articles/PMC5977074/, accessed 17 June 2019. See also A Kuffer, A Maercker and A Burri, “Transgenerational effects of PTSD of traumatic stress: do telomeres reach across the generations?”, (2014) Journal of Trauma & Treatment, accessed 17 June 2019.

[56] 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]. 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, accessed 18 July 2016, Chapters 1, 6, 17, 30.

[57] For more information about Aboriginal 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, 1997, at www.humanrights.gov.au, above, n 17.

[58] See for example P Hora, “The trauma-informed courtroom”, International Society for Therapeutic Jurisprudence, at https://mainstreamtj.wordpress.com/2018/12/14/the-trauma-informed-courtroom-tj-court-craft-series-14/, accessed 10 October 2019.

[59] OCHRE, “NSW Government Plan for Aboriginal affairs: education, employment & accountability”, at www.aboriginalaffairs.nsw.gov.au/pdfs/OCHRE/AA_OCHRE_final.pdf, accessed 29 October 2019.

[60] University of Melbourne, “Uluru Statement from the heart: information booklet”, at https://law.unimelb.edu.au/__data/assets/pdf_file/0010/2764738/Uluru-Statement-from-the-Heart-Information-Booklet.pdf, accessed 22 October 2019.

[61] 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.

[62] S Fryer-Smith, Aboriginal Benchbook for Western Australian courts, above n 47, p 3:9.

[63] Uluru Statement from the Heart, 2017, above n 59.

[64] [2019] HCA 7 at [230].

[65] above, n 47, p 3:10.

[66] ibid.

[67] The Aboriginal mortality rate is 1.6 times higher than for non-Indigenous people: Australian Institute of Health and Welfare, “Deaths in Australia” at www.aihw.gov.au/reports/life-expectancy-death/deaths-in-australia/contents/life-expectancy, accessed 10 October 2019.

[68] 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.

[69] F Gale, “Introduction”, in F Gale (ed), Women’s Role in Aboriginal Society, 3rd edn, 1978, Australian Institute of Aboriginal Studies, Canberra, p 1.

[70] See L Behrendt, “Aboriginal women and the criminal justice system” (2002) 14(6) JOB 41 at 42.

[71] 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.

[72] 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) at http://pandora.nla.gov.au/pan/25201/20080114-1107/customarylawDP.htm accessed 22 October 2019. For further information about Aboriginal Customary Laws, see Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, ALRC Report No 31, 1986, Canberra, at www.alrc.gov.au, accessed 2 June 2014; 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, at www.lrc.justice.wa.gov.au/, accessed 22 October 2019.

[73] See ALRC, Pathways to justice — inquiry into the incarceration rate of Aboriginal and Torres Strait Islander people, above n 51, 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.

[74] Judicial Council on Cultural Diversity, The Path to Justice: Access to Justice for Aboriginal and Torres Strait Islander Women (2016) http://jccd.org.au/wp-content/uploads/2016/04/JCCD_Consultation_ Report_-_Aboriginal_and_Torres_Strait_Islander_Women.pdf, accessed 17 October 2019.

[75] Judicial Council on Cultural Diversity, The Path to Justice: Access to Justice for Migrant and Refugee Women (2016) http://jccd.org.au/wp-content/uploads/2016/04/JCCD_Consultation_ Report_-_Migrant_and_Refugee_Women.pdf, accessed 17 October 2019.

[76] ALRC, Pathways to Justice, above n 51, Recommendation 4.

[77] KPMG, Maranguka Justice Reinvestment Project Impact Assessment, 2018, p 6 at http://www.justreinvest.org.au/wp-content/uploads/2018/11/Maranguka-Justice-Reinvestment-Project-KPMG-Impact-Assessment-FINAL-REPORT.pdf, accessed 22 October 2019.

[78] www.justreinvest.org.au/about-us/, accessed 22 October 2019.

[79] OCHRE, NSW Government Plan for Aboriginal affairs: education, employment & accountability, p 11 at www.aboriginalaffairs.nsw.gov.au/pdfs/OCHRE/AA_OCHRE_final.pdf, accessed 29 October 2019.

[80] NSW Ombudsman, “OCHRE Review report”, October 2019, p 18 at www.ombo.nsw.gov.au/__data/assets/pdf_file/0005/74183/OCHRE-Report_October-2019.pdf, accessed 22 October 2019.

[81] See statistics at 2.1 derived from the NSW Bureau of Crime Statistics and Research and the ABS.

[82] 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 www.aihw.gov.au/getmedia/0422b2d9-dd3f-41a2-aa8e-e13a9cf9afca/ctgc-rs24.pdf.aspx?inline=true, accessed 22 October 2019.

[83] Available on JIRS, “Diversionary Programs” at https://jirs.judcom.nsw.gov.au/services/AboriginalServices.html, accessed 22 October 2019.

[84] See “Youth Koori Court fact sheet” at http://www.childrenscourt.justice.nsw.gov.au/Documents/Youth%20Koori%20Court%20factsheet%20updated.pdf, accessed 22 October 2019.

[85] 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.

[86] Judicial Commission of NSW, Local Court Bench Book, 1988—, Sydney, “Bail”, at [20-000] and ff.

[87] See, for example, R v Bugmy [2004] NSWCCA 258 where the NSWCCA held that a condition imposed on the offender under a suspended sentence that he stay away from Wilcannia for two years unless with the permission of the judge was uncertain and unduly harsh.

[88] D Eades, Aboriginal ways of using English, above n 66, Ch 7. Dr Eades comments that the increasing awareness of Aboriginal ways of using English only sometimes results in more equal delivery of justice to Aboriginal 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.

[89] 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 New South Wales 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 193–4.

[90] The information in this box is drawn from the S Fryer-Smith, Aboriginal Benchbook for Western Australian Courts, 2nd edn, 2008, above n 47, Ch 5; and the Supreme Court of Queensland, Equal Treatment Benchbook, 2005, above n 47, Ch 9.6, 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, at [2.11] at www.aija.org.au, accessed 22 October 2019.

[91] Supreme Court of Queensland, Equal Treatment Benchbook, above n 47.

[92] 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 66, p 122.

[93] S Fryer-Smith, Aboriginal Benchbook for Western Australian courts, above n 47, p 5:7, para 5.3.1, Supreme Court of Queensland, Equal Treatment Benchbook, above n 47, 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.

[94] S Fryer-Smith, ibid, p 5:7, para 5.3.1.

[95] Note the concerns of the NSWLRC in its Jury Directions in Criminal Trials, Report 136, 2013, 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”.

[96] D Eades, Aboriginal ways of using English, above n 66; 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.

[97] The information in this box is drawn from the S Fryer-Smith, Aboriginal Benchbook for Western Australian Courts, above n 47, Ch 5; and the Supreme Court of Queensland, Equal Treatment Benchbook, above n 47, Ch 9.

[98] Supreme Court of Queensland, Equal Treatment Benchbook, above n 47, p 123.

[99] See 2.3.3.2 above.

[100] M Triggiano, “Childhood trauma: essential information for courts,” Wisconsin Association of Treatment Court Professionals, 2015.

[101] Section 41 Evidence Act 1995.

[102] 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.

[103] G Lindsay, “Indigenous estate distribution orders”, Ngara Yura Program presentation, 1 March 2018, p 6 at https://jirs.judcom.nsw.gov.au/conferences/conference.php?id=1409, accessed 22 October 2019.

[104] Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2002—, Sydney, accessed 22 October 2019.

[105] Judicial Commission of NSW, Local Court Bench Book, 1988—, Sydney, at www.judcom.nsw.gov.au/publications, accessed 22 October 2019.

[106] See also Judicial Commission of NSW, Sentencing Bench Book, 2006—, Sydney at [2-200].

[107] 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.

[108] 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].

[109] (1992) 76 A Crim R 58 at 62–63.

[110] (2013) 249 CLR 571.

[111] www.publicdefenders.nsw.gov.au/barbook, accessed 12 November 2019.

[112] Bugmy v The Queen (2013) 87 ALJR 1022 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 18 July 2016. 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 October 2013, at www.jca.asn.au/past-colloquiums, accessed 27 May 2014.

[113] See JIRS under “Diversionary Programs” for contact information.

[114] 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. 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, at www.lawlink.nsw.gov.au, accessed 21 May 2009.

[115] Judicial Commission of NSW, Circle Sentencing in New South Wales, (video), Sydney, 2009. Please view this video clip via the Commission’s website at www.judcom.nsw.gov.au/publications.

[116] NSW Law Reform Commission, Sentencing Aboriginal Offenders, Report 96, 2000, p 63.

[117] 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 106, 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. Note that in sentencing for Commonwealth offences, cultural practices cannot be taken into account in mitigation or aggravation of the seriousness of criminal offending.

[118] Section 16A(2A) Crimes Act 1914.

[119] 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”.

[120] 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.

[121] S Fryer-Smith, Aboriginal Bench Book for Western Australian Courts, above n 47.

[122] (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) 160 FLR 252; [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.

[123] (unrep, 14/11/97, NSWSC) at 10.

[124] 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.

[125] R v Bugmy [2012] NSWCCA 223.