Aboriginal people

2.1 Some statistics

  • Population:[1]

    • Over 216,176 (2.9%) of the 7.48 million residents of NSW are Aboriginal.

    • With 33%, NSW has more Aboriginal residents than any other Australian State or Territory.

    • There are slightly more Aboriginal women (107,386) than men (108,809) resident in NSW.

  • Language:[2]

    • 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.[3]

    • Aboriginal people aged 20 to 64 years who did not have post-school qualifications decreased from 58% to 50% between 2011 and 2016.[4]

    • 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 improve significantly in any year group.[5]

  • Employment:

    • 15.3%[6] of Aboriginal people in NSW are unemployed compared with a national unemployment rate of 6.3%.[7]

    • In non-remote locations the Community Development Employment Program (CDEP) was extended until 30 June 2017.[8] From July 2013, the Remote Jobs and Communities Program (RJCP) began providing reforms to employment, participation and community-development services in remote regions across Australia. The RJCP replaced the CDEP in remote areas.[9]

    • Aboriginal people in NSW earn 63% of the income of non-Aboriginal people in NSW ($542 per week compared with $852 per week after adjusting for household size and composition).[10]

  • Housing:[11]

    • 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.[12]

  • 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%.[13]

    • 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.[14]

    • The life expectancy of Aboriginal males in NSW is 10.6 years less than the life expectancy of non-Aboriginal males and 9.5 years less for females.[15]

    • Aboriginal people are 10 times more likely to suffer hearing impairment than the general population, ie ear diseases and hearing loss.[16] 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.

    • There were significant falls in Aboriginal infant mortality rates between 2011 and 2015 although Aboriginal infants are 1.2 times more likely to die than non-Aboriginal infants (4 per 1,000 live births, compared with 3.3). The median age at death was 49 years for Aboriginal males and 56 years for Aboriginal females, compared with 76 years for non-Aboriginal males and 82 years for non-Aboriginal females.[17]

  • Violence:

    • While 2.5% of the NSW population is Aboriginal, 7% of victims of crime in NSW are Aboriginal, three times higher than the general population.[18]

    • In NSW Aboriginal people comprised between 65% and 75% of victims of family and domestic violence related offences.[19]

    • In NSW Aboriginal women accounted for 9.3% of victims of domestic violence related offences in 2017.[20]

    • Aboriginal women accounted for approximately 5.5% of all female homicide victims in NSW between 2013 and 2017, four-fifths (8 of 10 female Aboriginal victims) of whom were killed by intimate partners,[21] compared with 45.6% (73 of 160 female victims) of non-Aboriginal victims.[22]

    • Aboriginal men are about 7 times more likely and Aboriginal women are 9 times more likely to be domestic assault offenders, than non-Aboriginal men and women.[23]

    • 15.4% of alleged offenders of sexual abuse and 17.3% of alleged offenders of child sexual assault offences were Aboriginal.[24]

    • 9.8% of all NSW sexual abuse victims aged 15 years or younger were Aboriginal. Aboriginal children make up 4% of children in NSW.[25]

    • 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”.[26]

    • 70% of Aboriginal women in custody have been victims of child sexual assault.[27]

    • Aboriginal women are five times more likely than non-Aboriginal women to be victims of domestic assault (2,017 per 100,000 population compared to 436 per 100,000). Aboriginal male offending is more than seven times higher than non-Aboriginal male offending (2,598 per 100,000 population compared to 353 per 100,000).[28]

  • Prosecutions, bail and imprisonment:

    • 3.8% of Aboriginal people appearing before the NSW Local Court appear on at least one offensive language or behaviour charge[29] — this represents almost 33.2% of such charges.[30]

    • Aboriginal people were 6 times more likely than the NSW average to commit a murder, 8 times more likely to commit robbery, and 10 times more likely than the NSW average to be implicated in a motor vehicle theft.[31]

    • Aboriginal defendants are more likely to be refused bail in NSW courts — 14.5% compared with 6.3% for non-Aboriginal defendants. Aboriginal defendants are also more likely to be refused bail due to already being in custody for a prior offence — 9.1% compared to 3.1% 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.[32]

    • Aboriginal juveniles account for 53% of all juveniles in detention centres, and are imprisoned at a rate approximately 17 times that of the non-Aboriginal population.[33]

    • In 2017, Aboriginal women accounted for 32.1% of the adult female prison population. Aboriginal men accounted for 23.4% of the adult male prison population. Overall, Aboriginal people remain grossly over-represented in NSW prisons. In 2017, the full-time Aboriginal prisoner population was 24% of the prison population or 3,035 out of a total of 12,623 full-time inmates. This means that Aboriginal people are approximately 10 times more likely to be incarcerated in NSW than non-Aboriginal people.[34]

    • Between 2007 and 2017, the Aboriginal imprisonment rate rose by 39% (nation-wide) compared to the non-Aboriginal rate of a 25% increase. In NSW, the rate of Aboriginal imprisonment increased by 39% from approximately 1,600 Aboriginal persons per 100,000 to 2,065 Aboriginal persons per 100,000. This contrasts with a rate change of 180 to 154 for non-Aboriginal persons per 100,000 for the same period.[35]

    • Of the States and Territories, the Northern Territory and both Western and South Australia have higher Aboriginal prisoner rates than NSW.[36]

    • In 2017, 27,318 distinct Aboriginal people appeared in a NSW court charged with a criminal offence (12.6% of the NSW Aboriginal population). Their court appearance rate is therefore 8 times higher than the NSW population as a whole — 111,971 people or 1.5% of the NSW population.[37]

    • In 2017, across all NSW Criminal Courts (that is, Children’s, Local and Higher court jurisdictions) the number of Aboriginal people given a custodial sentence was 5,518 (or 2.5% of the Aboriginal population in NSW). This was approximately 12 times higher than the overall rate of NSW people given a custodial sentence.[38]

2.2 Some general information[39]

2.2.1 Aboriginal people, Torres Strait Islander people, Kooris, Murris and other groups[40]

  • 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 claiming their Aboriginal identity, identifying themselves, and being accepted by the relevant Aboriginal/Torres Strait Islander community as Aboriginal and/or Torres Strait Islander.[41]

  • 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) and do not live traditional Aboriginal lives.

  • 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.[42]

  • 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 do not live traditional lives and 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.

2.2.2 Cultural differences

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

  • Impact of cultural losses and survival — Many Aboriginal people regard the 200-year-old white settlement of Australia as an “illegal occupation” or “colonisation”. The concept of “reconciliation” is important to many Aboriginal people. Reconciliation involves an acceptance by the non-Aboriginal community of the way the Aboriginal community views the overall impact of colonisation. 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; this was but a part in the process of reconciliation. Reconciliation also involves the development of a treaty (as in some other countries) and land rights or self determination. Many Aboriginal (and non-Aboriginal) people believe that the statistics in 2.1 above are a direct result of 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. In addition proximate factors which derive from these underlying 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 the criminal justice system and this has been described as a “national disgrace”.[43]Connected to this, the police, government services and the law are frequently distrusted and/or seen as tools of oppression. For example, until relatively recently, many older 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. 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 — including, for example, high levels of poverty, unemployment, disease, illness and alcohol and drug abuse — as illustrated at 2.1 above.[44]

  • Collective, group-oriented identity — Aboriginal culture is a much more collective and co-operative culture than, for example, the Anglo-Celtic Australian[45] 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.[46] 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 tend to have a very strong sense of relationship to the land of their particular ancestors, based on Aboriginal spiritual belief that land, or the spirits of ancestors living on that land, give life and strength. Their own part of the country may be referred to as “my country”, “country”, or even “Aboriginal nation”. Despite this, some Aboriginal people are much more mobile than many non-Aboriginal people. For example, they may move back and forth between their part of the country and the city for personal and/or employment reasons. However, they will almost always see their particular land as their home and place to return to. Mobility does not necessarily reflect a lack of community ties at any particular location.

  • Respect for Aboriginal spirituality and culture is important — for example, “dreamtime” 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.

  • Individual material possessions are traditionally not highly prized — family and spiritual matters are more important.[47] 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, as is common to many social events for Aboriginal and non-Aboriginal people alike, accompanying drinking can commonly occur in public rather than privately.[48] Aboriginal people tend to have a strong outdoor spirit. 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.

  • 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.[49] 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.[50] 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 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.[51]

  • Impact of customary law — Aboriginal customary law is integral to Aboriginal culture. For Aboriginal people customary law is an “all encompassing reality”.[52] 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.[53]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 and discrimination — Most Aboriginal people have experienced racism and discrimination in relation to all forms of public interaction — for example, in connection with rental accommodation, most other types of services (government and private) and employment. Most will have had frequent experience of this. Very few, if any, will have had no such experience.[54]

    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.

2.2.3 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.

2.3 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.[55]

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 bond. Available alternatives to custody should also be considered where appropriate (see 2.3.6 below).[56] For further information about non-custodial alternatives, see the Sentencing Bench Book at [4-400] and the Aboriginal Services Unit fact sheets.[57]

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.[58]

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 6.3% non-Aboriginal people).[59] 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.[62] 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,[63] 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.

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 2.3.5 Indigenous 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]. 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].

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 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]. 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.[75]

2.3.6 Directions 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

2.4 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.alsnwsact.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) 6921 9230
    Fax: (02) 6921 9340
    Armidale
    117 Faulkner 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
    Suite 15/245 Chalmers Street
    Redfern NSW 2016
    Ph: (02) 9310 3188 or 1800 111 844
    For contextual information on Native Title Representative Bodies recognised under the Australian Commonwealth Government’s Native Title Act 1993 (Cth), see: www.ntrb.net

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

  • Aboriginal Medical Service
    36 Turner Street
    Redfern NSW 2016
    Ph: (02) 9319 3345

  • 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, 2005, Sydney, signed by the Hon Bob Debus, NSW Attorney General and the members of the NSW Aboriginal Justice Advisory Council, accessed 18 July 2016.

www.lawlink.nsw.gov.au/lawlink/cpd/ll_cpd.nsf/vwFiles/speak_out_speak_strong_rowena_lawrie_ajac_2003.doc/$file/speak_out_speak_strong_rowena_lawrie_ajac_2003.doc

Aboriginal Justice Advisory Council, Speak Out, Speak Strong, Inquiry into the needs of Aboriginal women in custody, 2003, accessed 18 July 2016.

Australasian Institute of Judicial Administration Inc (AIJA), Aboriginal Benchbook for Western Australian Courts, 2nd edn, 2008, Carlton, Victoria, accessed 18 July 2016.

Australasian Institute of Judicial Administration Inc, Bench Book for Children Giving Evidence in Australian Courts, 2009, Melbourne, accessed 18 July 2016.

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, National Aboriginal and Torres Strait Islander Social Survey, New South Wales, 2002 (ABS Cat No 4714.1.55.001), 2004, Canberra, at www.abs.gov.au, accessed 13 August 2013.

Australian Bureau of Statistics, Deaths, Australia, 2011, Aboriginal And Torres Strait Islander Deaths, (ABS Cat No 3302.0), 2012, 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), 2012, Canberra, at www.abs.gov.au, accessed 13 August 2013.

Australian Bureau of Statistics, “Aboriginal and Torres Strait Islander Home Ownership: a snapshot, 2006”, at www.abs.gov.au, accessed 13 August 2013.

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, accessed 14 August 2013.

Australian Bureau of Statistics, “Law and justice statistics – Aboriginal and Torres Strait Islander people: a snapshot, 2006”, at www.abs.gov.au, accessed 14 August 2013.

Australian Institute of Health and Welfare, Aboriginal and Torres Strait Islander Health Performance Framework 2008 report: detailed analyses, at www.aihw.gov.au, accessed 14 August 2013.

Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander people: an overview 2011, at www.aihw.gov.au, accessed 14 August 2013.

Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, ALRC Report No 31, 1986, Canberra, at www.austlii.edu.au, accessed 14 August 2013.

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

L Behrendt, “Aboriginal women and the criminal justice system” (2002) 14(6) Judicial Officers’ Bulletin 41 at 42, at https://jirs.judcom.nsw.gov.au, accessed 14 August 2013.

C Cunneen, The Impact of Crime Prevention on Aboriginal Communities, 2001, at www.lawlink.nsw.gov.au, accessed 14 August 2013.

Deloitte Access Economics, An economic analysis for Aboriginal and Torres Strait Islander offenders: prison vs residential treatment, Report prepared for NIDAC, 2012, at www.deloitteaccesseconomics.com.au, accessed 14 April 2014.

Corrective Services NSW, “NSW Inmate Census 2011”, Statistical Publication No 38, November 2011, accessed 18 July 2013.

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)”, at www.healthinfonet.ecu.edu.au, accessed 14 August 2013.

D Dick, “Circle Sentencing of Aboriginal Offenders: Victims Have a Say” (2004) 7(1) The Judicial Review 57.

M Dodson, “Customary law and the sentencing of Indigenous offenders”, (2008) 20(5) Judicial Officers’ Bulletin 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, at www.aat.gov.au, accessed 14 August 2013.

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, at http://aboriginal.telethonkids.org.au/kulunga-research-network/working-together-2nd-edition-2014, accessed 27 May 2014.

D Eades, Aboriginal ways of using English, Aboriginal Studies Press, Canberra, 2013.

D Eades, “Aboriginal English in Court” (1994) 1(4) The Judicial Review 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.

D Eades, “Communicating with Aboriginal people in NSW” (2008) 20(10) Judicial Officers’ Bulletin 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(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.lawlink.nsw.gov.au, accessed 14 August 2013.

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

A Hennessy, “Indigenous Sentencing Practices in Australia”, paper presented at the International Society for Reform of the Criminal Law Conference, Brisbane, July 2006 at www.isrcl.org/Papers/2006/Hennessy.pdf, accessed 14 August 2013.

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.austlii.edu.au, accessed 14 August 2013.

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

Law Reform Commission of NSW, Sentencing Indigenous Offenders, Report No 96, 2000, Chapter 2, at www.lawlink.nsw.gov.au, accessed 14 August 2013.

Law Reform Commission of Western Australia, 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 14 August 2013.

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, at www.austlii.edu.au, accessed 14 August 2013.

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.

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) Judicial Officers’ Bulletin 47.

S Norrish, “Sentencing Indigenous 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.

Ombudsman NSW, Responding to child sexual assault in Aboriginal Communities, Sydney, 2012.

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, at www.lawlink.nsw.gov.au, accessed 14 August 2013.

L Re, “Oral Evidence v Written Evidence: The Myth of the ‘Impressive Witness’” (1983) 57 ALJ 679.

Supreme Court of Queensland, Equal Treatment Benchbook, at www.courts.qld.gov.au, accessed 14 August 2013.

B Thomas, Diverting Aboriginal Adults from the justice system, Aboriginal Justice Advisory Council, at www.lawlink.nsw.gov.au, accessed 28 April 2014.

B Thomas, Policing Public Order: Offensive Language & Behaviour, The Impact on Aboriginal People, Aboriginal Justice Advisory Council, 1998, accessed 18 July 2016.

B Thomas, RCIADIC Review of NSW Government Implementation of Recommendations, Aboriginal Justice Advisory Council, 2000, at www.lawlink.nsw.gov.au, accessed 14 August 2013.

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 19 June 2009.

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, at www.bocsar.nsw.gov.au, accessed 14 August 2013.

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, at www.lawlink.nsw.gov.au, accessed 28 April 2014.

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, at www.bocsar.nsw.gov.au, accessed 14 August 2013.

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, at www.dpc.nsw.gov.au, accessed 28 April 2014.

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 11 contains information about how to send us your feedback.

Appendix — The Fernando principles[90]

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,[91] 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,[92] 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 Aboriginals 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 Aborigine 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,[93] 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.

Post Fernando

In 2013, the High Court considered the issue of sentencing Aboriginal offenders in Bugmy v The Queen (2013) 87 ALJR 1022 and Munda v Western Australia (2013) 87 ALJR 1035.

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]).[94]

On appeal to the NSWCCA,[95] 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 Western Australia, 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.



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

[2] 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.

[3] 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.

[4] ibid.

[5] 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.

[6] Australian Bureau of Statistics, 2016 Census, at www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/IQS1, accessed 31 May 2018.

[7] Australian Bureau of Statistics, 2016 Census at www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/1, accessed 31 May 2018.

[8] See: http://guidesacts.fahcsia.gov.au, accessed 26 June 2018.

[9] See: www.humanservices.gov.au, accessed 26 June 2018.

[10] Australian Institute of Health and Welfare, “Aboriginal and Torres Strait Islander Health Performance Framework 2012 report: New South Wales”, p 74 at http://aihw.gov.au, accessed 8 April 2014.

[11] ibid, p 61.

[12] ibid, p 70.

[13] Australian Institute of Health and Welfare, above n 10; Australian Bureau of Statistics, ibid, accessed 31 May 2018, p 52.

[14] Australian Institute of Health and Welfare, above n 10, p 46, NATSSIS, at www.abs.gov.au, accessed 30 May 2018.

[15] Australian Institute of Health and Welfare, Closing the Gap targets: 2017 analysis progress and key drivers of change, p 225, at https://www.aihw.gov.au/getmedia/e48ac649-2fdd-490d-91cf-4881ab5ef5c2/aihw-ihw-193.pdf.aspx?inline=true, accessed 7 May 2018.

[17] Australian Institute of Health and Welfare, “Aboriginal and Torres Strait Islander Health Performance Framework 2012”, above n 10, p 72.

[18] As at 30 June 2009; Australian Bureau of Statistics, “4510.0 – Recorded Crime — Victims, Australia, 2009” at www.abs.gov.au, accessed 9 April 2014.

[19] K Grech & M Burgess, “Trends and patterns in domestic violence assaults: 2001 to 2010” (2011) 61 Crimes and Justice Statistics.

[20] ibid, p 8.

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

[22] Statistics relate to the period between 2013 and 2017. 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.

[23] ibid.

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

[25] NSW Ombudsman, Responding to child sexual assault in Aboriginal communities, December 2012, p 83, at www.ombo.nsw.gov.au, accessed 9 April 2014, p 85.

[26] 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 29 April 2014.

[27] Aboriginal Justice Advisory Council, Speak Out, Speak Strong, Inquiry into the needs of Aboriginal women in custody, 2003, at www.lawlink.nsw.gov.au/, accessed 29 April 2014.

[28] BOCSAR, unpublished data 2017, Supplied by the NSW Bureau of Crime Statistics in June 2018.

[29] 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.

[30] Statistics relate to the period of 2017. Source: unpublished data supplied by the NSW Bureau of Crime Statistics and Research, June 2018, based on NSW Local Court data.

[31] Statistics relate to the period between January and December 2013. 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.

[32] 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.

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

[34] BOCSAR, Custody Statistics, accessed 6 June 2018; Corrective Services NSW, NSW Inmate Census 2016: Summary of Characteristics, p 3, at www.correctiveservices.justice.nsw.gov.au/Documents/045-nsw-inmate-census-2016.pdf, accessed 6 June 2018.

[35] BOCSAR, unpublished data 2001-2017, provided June 2018.

[36] Department of Corrective Services NSW, “Facts and Figures”, March 2013, accessed 18 July 2016.

[37] Crime statistics obtained from NSW Bureau of Crime Statistics and Research, “NSW Criminal Courts Statistics 2017”, based on NSW Police and NSW Criminal court data.

[38] ibid.

[39] 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.

[40] 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.

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

[42] See n 40.

[43] 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.

[44] 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, at www.lawlink.nsw.gov.au, accessed 15 July 2009; 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, accessed 15 July 2009.

[45] 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.

[46] S Fryer-Smith, Aboriginal Benchbook for Western Australian courts, above n 39, p 3:9, 3.3.1.

[47] ibid, p 3:10, 3.3.1.

[48] ibid, p 3:10, 3.3.1.

[49] See D Eades, Aboriginal ways of using English, Aboriginal Studies Press, Canberra, 2013; D Eades, “Communicating with Aboriginal people in NSW” (2008) 20(10) Judicial Officers’ Bulletin 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.

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

[51] See L Behrendt, “Aboriginal women and the criminal justice system” (2002) 14(6) Judicial Officers’ Bulletin 41 at 42.

[52] 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.

[53] 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 15 July 2009. 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) Judicial Officers’ Bulletin 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 2 June 2014.

[54] See Annual Reports and other information published by the Anti-Discrimination Board of NSW and the Australian Human Rights and Equal Opportunity Commission.

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

[56] 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.healthinfonet.ecu.edu.au/population-groups/offender-health/programs-and-projects/diversion-programs and www.aic.gov.au/en/criminal_justice_system/Aboriginaljustice/interventions/alternatives/diversion.aspx, accessed 14 June 2018.

[57] Available on JIRS, “Diversionary Programs” at https://jirs.judcom.nsw.gov.au/services/AboriginalServices.html, accessed 22 May 2018.

[58] See “Youth Koori Court fact sheet” at www.childrenscourt.justice.nsw.gov.au/Documents/Youth%20Koori%20Court%20A4_Accessible.pdf, accessed 14 June 2018.

[59] 2017 data supplied by the NSW Bureau of Crime Statistics and Research, Reference: sr18-16315, June 2018, based on NSW Police and NSW Criminal court data.

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

[61] See, for example, R v Bugmy [2004] NSWCCA 258 where the Court of Criminal Appeal 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.

[62] D Eades, Aboriginal ways of using English, above n 49, 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.

[63] See for example, 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 The Judicial Review 189 and 193–4; and Downes J, Oral Evidence in Arbitration, speech to the London Court of International Arbitration’s Asia-Pacific Users’ Council Symposium, Sydney, 14 February 2003, accessed 18 July 2016. Kirby J also addressed the fallibility of judicial assessment of credibility based on the appearance and demeanour of a witness in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at [89].

[64] The information in this box is drawn from the S Fryer-Smith, Aboriginal Benchbook for Western Australian Courts, 2nd edn, 2008, above n 39 Ch 5; and the Supreme Court of Queensland, Equal Treatment Benchbook, 2005, above n 39, 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 26 May 2013.

[65] Supreme Court of Queensland, Equal Treatment Benchbook, above n 39.

[66] Dr Diana Eades describes the Aboriginal tendency to “gratuitous concurrence” as a cultural trait that can be exploited or misunderstood in courtroom proceedings. Eades, Aboriginal ways of using English, above n 49, p 122.

[67] S Fryer-Smith, Aboriginal Benchbook for Western Australian courts, above n 40, p 5:7, para 5.3.1, Supreme Court of Queensland, Equal Treatment Benchbook, n 39, 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.

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

[69] 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”.

[70] D Eades, Aboriginal ways of using English, above n 49; D Eades, “Aboriginal English in Courts” (1994) 1(4) The Judicial Review 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) Judicial Officers’ Bulletin 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.

[71] The information in this box is drawn from the S Fryer-Smith, Aboriginal Benchbook for Western Australian Courts, above n 39, Ch 5; and the Supreme Court of Queensland, Equal Treatment Benchbook, above n 39 Ch 9.

[72] Supreme Court of Queensland, Equal Treatment Benchbook, above n 39, p 123.

[73] See 2.3.3.2 above.

[74] Section 41 Evidence Act 1995.

[75] G Lindsay, “Indigenous estate distribution orders”, Ngara Yura Program presentation, 1 March 2018, at https://jirs.judcom.nsw.gov.au/conferences/conference.php?id=1409, accessed 14 June 2018 at p 6.

[76] Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2002—, Sydney, accessed 18 July 2016.

[77] Judicial Commission of NSW, Local Court Bench Book, 1988—, Sydney, at www.judcom.nsw.gov.au/publications, accessed 13 May 2014.

[78] See also Judicial Commission of NSW, Sentencing Bench Book, 2006—, Sydney at [2.200].

[79] 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 for the prisoner to read, but the offender must not be allowed to retain it: s 28(5) Crimes (Sentencing Procedure) Act 1999.

[80] 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].

[81] (1992) 76 A Crim R 58 at 62–63.

[82] 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.

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

[84] See D Dick, “Circle Sentencing of Aboriginal Offenders: Victims Have a Say” (2004) 7(1) The Judicial Review 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) Judicial Officers’ Bulletin 47, Judicial Commission of NSW; R Lawrie, B Thomas, I Potas, J Smart and G Brignell, 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, at http://archive.sclqld.org.au, accessed 21 May 2009. 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.

The Judicial Commission of NSW has produced a DVD for judicial officers, Circle Sentencing in New South Wales, Sydney, 2009, which explains what circle sentencing is and how it works. Please contact the Judicial Commission to obtain a copy or it may be viewed as a video clip on the Commission’s website at www.judcom.nsw.gov.au/publications.

[85] Judicial Commission of NSW, Circle Sentencing in New South Wales, (DVD), Sydney, 2009.

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

[87] 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 78, 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.

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

[89] Note the NSW Government Committee on Law and Safety inquired into whether the laws on driver licence disqualification should be reformed and published its Final Report in November 2013 with recommendations to give the courts more discretion to impose disqualification periods that take account the circumstances of the offender’s case.

[90] This Appendix 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 Judicial Officers’ Bulletin 17 and Judicial Commission, Sentencing Bench Book, Special Bulletin No 4, October 2013.

[91] Australasian Institute of Judicial Administration (AIJA), Aboriginal Bench Book for Western Australian Courts, above n 39.

[92] (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.

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

[94] 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.

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