The State Government will consider sweeping reforms to recognise Aboriginal customary law and provide greater justice for indigenous Western Australians.
The State Government will consider sweeping reforms to recognise Aboriginal customary law and provide greater justice for indigenous Western Australians.
Attorney General Jim McGinty said the Western Australian Law Reform Commission report had made 131 recommendations for legislative, constitutional, administrative and policy reform to recognise traditional Aboriginal laws, practices and punishments under the protection of the State's legal system.
"A greater recognition of Aboriginal customary law represents a major step forward in the process of reconciliation," Mr McGinty said.
The Attorney General said the Law Reform Commission's recommendations provided an historic opportunity to unite two systems of law under the one umbrella.
"While there is no intention to codify Aboriginal customary law, the acceptance of indigenous laws and practices in the criminal and civil justice systems will help empower Aboriginal communities and address some of the injustices and disadvantages faced by indigenous people," he said.
"The recognition of traditional law will help address the systemic bias in our legal system and respect the fact that a complex system of laws still exists in indigenous societies.
"WA has one of the highest imprisonment rates of Aboriginal people in the country and it is vital we address that imbalance."
Indigenous people make up about three per cent of the State's population, yet in 2004 Aboriginal people accounted for 40 per cent of the prison population, while in juvenile detention centres between 70 and 80 per cent of the children are Aboriginal.
"The commission's recommendations will help break the cycle of offending by Aboriginal people, which will not only reduce the imprisonment rate but benefit the broader community," Mr McGinty said.
The Attorney General said that Aboriginal customary law could not and would not be considered by any justice system as an excuse for criminal behaviour.
"The commission found no evidence that Aboriginal customary law condoned serious crimes such as violence against women or sexual abuse of children," he said.
"There is also no evidence that Aboriginal people use their cultural traditions to excuse criminal behaviour in any way.
"Sexual abuse and violence against women is not condoned by Aboriginal or Western communities and will be punished with the full force of the WA law."
Key recommendations made by the commission include:
- Constitutional recognition of the unique status and contribution of Aboriginal people to WA. (Recommendation 6).
- Establishing Aboriginal courts for adults and juveniles in regional areas and in the metropolitan area. (Recommendation 24).
- Establishing community justice groups which will have roles both within the formal criminal justice system, as well as developing informal processes to deal with law and order issues in indigenous communities. (Recommendation 17).
- Legislative recognition of Aboriginal customary law for the purposes of sentencing and bail, which includes considering whether an offender has been or will be punished under Aboriginal customary law. (Recommendations 34, 38 and 39).
- Amending parole laws so the Prisoners Review Board and Supervised Release Review Board can take submissions from Aboriginal elders about whether an offender should be returned to a community. (Recommendation 63).
- Instituting a diversionary scheme for Aboriginal young people to allow police to divert young offenders to community justice groups instead of sending them through the criminal justice system at an early age. (Recommendation 50).
- Reforms to the State's intestacy laws by allowing Aboriginal people, for the first time, to administer the estates of deceased relatives. (Recommendation 65).
- Amendments to the Coroners Regulations so that cultural, spiritual or customary beliefs are taken into account when deciding whether to order a post-mortem examination. (Recommendation 76).
- Recognising traditional Aboriginal marriages for people aged over 18 in WA law. (Recommendation 83).
- Amending the Evidence Act to exclude the hearsay and opinion rules for evidence about Aboriginal customary law. (Recommendation 109).
- Allowing judges or magistrates of a particular gender to be assigned to cases in which gender-restricted evidence is likely to be heard. (Recommendation 114).
- Establishing a State-wide Aboriginal languages interpreter service to assist Aboriginal people to better understand the court process. (Recommendation 117).
- Establishing an independent Commissioner for Indigenous Affairs to monitor and evaluate the effectiveness of indigenous programs. (Recommendation 3).
