Indigenous Law Bulletin
Compiled by Patrick Eyers
A study by the Aboriginal Justice Advisory Council has found that almost half of all Indigenous people gaoled in New South Wales, after having been refused bail, do not receive a custodial sentence when their case is finalised in court. The report also found that there exists a significant communication problem between courts and Aboriginal defendants as to the outcomes and conditions of bail.
Traditional owners of the Jabiluka uranium mine site have called for a full Senate inquiry into the use of the mine, expressing concern over serious environmental damage at the site. The Gundjehmi Aboriginal Corporation’s Andy Ralph stated that allegations of a new leak from the site only add to ‘long-held suspicions of a culture of secrecy’ at the mine. The Federal Shadow Environment Minister, Kelvin Thompson, has echoed the call for a full inquiry.
The Aboriginal Justice Advocacy Committee has called for the Northern Terrritory government to establish a court to deal specifically with Aboriginal offenders. A similar program is currently being established in two Victorian centres. According to the Committee’s Chris Howse, the Aboriginal court is ‘the kind of thing the Territory has been crying out for’ owing to the hugely disproportionate number of Indigenous inmates in Northern Territory gaols.
West Australian Supreme Court Judge Carmel McLure has taken into account the tribal spearing of a man convicted of manslaughter as a mitigating factor in his sentence. Damian Rictor, aged 20, would have received a longer sentence for an act of manslaughter committed in the Goldfields community of Coonana had he not been speared 12 times in the legs and thighs as punishment under customary law. Western Australian Aboriginal Legal Service CEO Dennis Eggington said that he was pleased that ‘the courts are flexible enough to be able to take [into account such] mitigating circumstances’.
A spokeswoman for ATSIC has described the widespread problems of sexual abuse and domestic violence in Aboriginal communities as having reached epidemic proportions. In response to the interim findings of the Gordon inquiry set up to evaluate the effectiveness of government agencies in dealing with these problems, ATSIC’s Colleen Hayward stated that such widespread abuse was ‘serious and frightful’, and that government agencies must work in ways which are ‘better and clearer’ and ‘more culturally appropriate’.
The High Court of Australia refused an appeal from the Federal Court by Lorna Cubillo and Peter Gunner, two members of the Stolen Generations who sought compensation from the Commonwealth government for being removed from their families as children. Indigenous Affairs Minister Phillip Ruddock welcomed the decision, which brings to an end a case that took six years and cost the federal government $13 million. The High Court upheld the ruling of the Federal Court that as the incidents occurred 40 years ago, the pair had run out of time to prosecute the Commonwealth. Despite the decision, other possible legal avenues for being awarded compensation remain available, according to University of New South Wales Professor George Williams.
The decision has led to calls for a reparations tribunal to be established for members of the Stolen Generations. The deputy leader of the Democrats, Senator Aden Ridgeway, stated that the High Court decision demonstrated ‘that the courts are ill-equipped to deal with matters of the heart’ and that compensation issues should be dealt with ‘in a more humane way’. ATSIC Commissioner for Social Justice Brian Butler stated that money spent by the federal government on the legal costs of defending such actions should be redirected into such a tribunal or compensation fund. Similar sentiments were expressed by Public Interest Advocacy Centre director Andrea Durbach.
A native title claim on behalf of the Larrakia people, traditional owners of parts of Darwin, has been lodged in the Federal Court. The landmark claim, which will test several legal issues including whether historical freehold extinguishes native title, will be heard in September.
The first official forum of the world’s Indigenous peoples was held at the United Nations. The Permanent Forum on Indigenous Issues brought together more than 900 representatives of Indigenous peoples from 70 countries. At the first session of the Permanent Forum, coming eight decades after it was spurned by the League of Nations, work began on the drafting of a resolution demanding communal ownership of land, and just remuneration for the use of Indigenous medicinal knowledge by multinational drug companies.
As events were held across Australia to mark National Sorry Day, the New South Wales Aboriginal Land Council renewed its call to the federal government to reaffirm its commitment to reconciliation. Council Chairman Rob Towney said that the call for an official apology from the federal government remains in place.