A National Curriculum for Australian Judicial Officers
UNIT 08

Unit Eight Australia’s Indigenous People

In This Section

A National Curriculum

Rationale

Aboriginal and Torres Strait Islander peoples are Australia’s first inhabitants. Numerous reports into the negative and often devastating effect of the justice system and intergenerational trauma on Aboriginal and Torres Strait Islander people has prompted a significant number of education and training programs to foster a fairer and less harmful system of justice for Aboriginal and Torres Strait Islander peoples.

In addition to education and training, other developments such as native title claims, amendments to the family law, juvenile justice, constitutional law, international law and the development of specialised Indigenous courts, have increased the need for judicial education in this area. The judicial role will increasingly involve some aspect of issues related to Indigenous Australians.

A National Curriculum

Application of the Core Dimensions

Application of the Core Dimensions

Substantive and Procedural Law

A focus of programs in this unit will be related to areas of the law (both substantive and procedural) that particularly affect Australia’s Indigenous people, such as native title, juvenile justice, criminal law, family law and care and protection proceedings. Programs can provide pathways to develop jurisdictional expertise in relevant areas.

Application of the Core Dimensions

Judge Craft Skills

Programs should consider that the interaction between an Indigenous person and the court system begins well before the individual appears before a judicial officer, either as a party, a witness or a family member. Court staff play a critical role in the process. The work of both court staff and judicial officers contributes to the overall court environment in which Indigenous parties and witnesses find themselves; it can be important for both groups to have an understanding as to how their activities interact to create that environment, from an Indigenous perspective. Many issues that arise may involve aspects of court practices or procedures, where both judicial and administrative input will be important.

Application of the Core Dimensions

Attitudes and Values

Programs in this unit may wish to include a consideration of various societal attitudes and values towards Indigenous Australians that exist currently and, in the past, and how the personal attitudes and values of judicial officers may have been influenced by these societal views. Programs developed under this unit may wish to consider exploring the application of the principles of equality and fairness in a diverse society.

Application of the Core Dimensions

Social Context

Dealing with Indigenous people in the justice system requires an understanding of the social context of the individuals involved, as well as developments in social values or public policy relevant to Indigenous Australians. Programs should consider how this dimension can be incorporated into programs under this unit. The development and delivery of programs under this unit should should engage in meaningful consultation with, and involvement of, Aboriginal and Torres Strait Islander people. Learning about social contexts against which and out of which particular issues and particular litigants come before the courts is an important consideration. Australia’s Indigenous population is a diverse community, linguistically, culturally and politically. The main distinction that is generally drawn is between Aboriginal and Torres Strait Islander peoples. However, the significance of family and clan structure in Indigenous society means that in reality there are many Indigenous groups or communities in Australia. There are also similarities and differences between those communities, as well as within them. The importance of land, or country, to Indigenous Australians is one example of a factor that is, at the same time, both a unifying principle, and one that contributes to the diversity of Indigenous communities, both in terms of geographical location and cultural identity. Any approach to developing a program in this area must, necessarily, take account of the impact of colonisation along with diversity within both the Indigenous community and the judiciary.

A National Curriculum

Core Judicial Qualities

Core Judicial Qualities

Independence

The courts remain independent of the other branches of government and judicial officers are not subject to improper pressure or influence when making decisions.

Core Judicial Qualities

Impartiality

This requires ‘treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness…and unbiased neutral decision making

Core Judicial Qualities

Fairness

Being patient and respectful, allowing litigants to present their case and ensuring the absence of actual or perceived bias

Core Judicial Qualities

Accountability

open court principles, annual reports identifying expenditure, rights to appeal, as well as giving reasons, noting the variation in this value for those in leadership roles.

Core Judicial Qualities

Efficiency

Ensuring the reasonably timely resolution of cases.

Core Judicial Qualities

Transparency

Maintaining an open rather than closed court as far as possible and providing clear and reasoned decisions that are publicly available as far as possible.

Core Judicial Qualities

Competency

Having sound knowledge of the relevant law and procedure as well as good court craft skills

Core Judicial Qualities

Integrity

Displaying intellectual honesty, respect and placing the obligations of judicial office above personal interests both inside and outside the courtroom.

Core Judicial Qualities

Courage

Doing justice according to law irrespective of the consequences or popularity of the decision

Core Judicial Qualities

Compassion

Compassion involves recognising the suffering of others and wanting to alleviate it. Within the constraints of the law, judicial officers can show compassion through procedural fairness, judicial engagement (exploring underlying issues and empowering a party to address them) and other therapeutic jurisprudence practices.

A National Curriculum

Judicial Learning Units

Aim

These programs provide judicial officers with information about matters in which the role or involvement of Aboriginal people might call for particular skills or a different approach.  They include Aboriginal courts, sentencing options and traditional Indigenous law.

Scope

These programs could encompass –

  • Relevant legislation and case law

Consideration of available bench books dealing with Indigenous people

  • The role and impact of customary law
  • Evidence and language in Aboriginal cases
  • The Aboriginal family, community and culture – the context of decision making
  • Equality issues in general
  • Child welfare, child removal, and the second stolen generation
  • Aboriginal courts.

Aim

These programs provide judicial officers with an understanding of intergenerational trauma within groups and also intergenerational strength.

Scope

These programs could encompass –

  • Current research on intergenerational trauma and strength
  • Sources of intergenerational trauma for Indigenous people
  • Impact of intergenerational trauma on Indigenous people, including mental health, decision making, responses, coping mechanisms, physical health
  • Case studies of lived experience
  • Healing pathways

Aim

These programs develop increased cultural capability in judicial officers, which encompasses cultural awareness, cultural safety and cultural competence, as well as an up-to-date understanding of cultural attachment.

Scope

These programs could encompass –

  • Understanding of cultural awareness, cultural safety and cultural competence
  • Diversity in Indigenous culture
  • Myths and stereotypes
  • Indigenous ways of learning
  • Barriers to cultural awareness
  • “Culture” a living entity rather than an historical artefact
  • Cultural attachment theory
  • Use of materials, including bench books and other resources

Aim

These programs develop increased awareness of the culture and identity of Indigenous people in the community in which the judicial officer carries out their role.

Scope

These programs could encompass –

  • Indigenous Identity
  • Factors that constitute or define Indigenous identity, for example, the importance of “Country”
  • Identity & diversity – avoiding stereotypes
  • Origins
  • Population and distribution
  • Aboriginal groups, clans and families
  • Demographics – age, health, education, economic (employment and community development)
  • The location and role of Aboriginal organizations
  • The interface between government bureaucracies and Aboriginal communities
  • Diversity – differences between Indigenous communities in cities, regional and remote locations
  • Mobility of (some) Aboriginal families and Aboriginal people

Aim

These programs develop an understanding of the historical context of Indigenous society today.

Scope

These programs could encompass –

  • Indigenous communities prior to white settlement
  • Post settlement history – Indigenous & non-Indigenous perspectives
  • Past legislation & policies
  • Contemporary legacies
  • Personal and community experiences
  • Gender, culture and the experience of Indigenous women
  • Attitudes to the legal system
  • Family structures and song lines
  • Interactions between the Indigenous and non-Indigenous community.
  • Social & Kinship structures
  • Family relationships
  • Community allegiances and responsibilities
  • Roles of immediate and extended family
  • Conflict between groups
  • Decision-making structures

Aim

These programs develop an understanding of the overrepresentation of Indigenous people in the criminal justice system and their experience of that system.

scope

These programs could encompass –

  • Causes of Indigenous over-representation in the criminal justice system – adult and young people
  • Policing practices and statistics, investigation, arrest, bail
  • The court system – understanding the process, impact of cultural factors and cultural obligations on courtroom conduct and management, relationship between court and the community, legal representation, the courtroom environment
  • Judicial perceptions and concerns
  • Therapeutic jurisprudence and a trauma informed courtroom.

Aim

These programs develop an understanding of the impact of Indigenous people’s health issues in the justice system.

Scope

These programs could encompass –

  • Alcohol and substance abuse
  • Mental health issues, including the impact of intergeneration trauma
  • Medical conditions, for example, the incidence of diabetes and otitis media in Indigenous communities
  • The role of the health system in supporting Aboriginal communities and sustaining a non-custodial sentencing plan

The Judicial Role

The primary focus of these programs is the judicial role of making decisions and giving reasons for decision, both written and oral.

Judicial conduct and ethical issues are unlikely to arise.

Aim

These programs maintain knowledge and develop mastery of specific legislation or other legal changes that affect Indigenous people.

Scope

These programs could encompass –

  • Recent changes in the law, either legislative or case law relevant to Indigenous people
  • Newly introduced laws relevant to Indigenous people
  • Recent developments in judicial practice relevant to Indigenous people

Aim

These programs provide judicial officers with information and skills to handle cases in which issues of family and domestic violence emerge.

Scope

These programs could encompass –

  • Relevant legislation and case law
  • Social research in regard to family violence and/or sexual violence
  • The experience of Indigenous victims of family and/or sexual violence
  • Cultural expectations and attitudes
  • Reasons for non-disclosure
  • Managing the court room
  • Trauma informed approaches

Aim

These programs provide judicial officers with information and skills to improve communication with Indigenous people in the court room.

Scope

These programs could encompass –

  • Cross-cultural communication – language, protocols, communication styles, non-verbal communication
  • Barriers to communication, including (but not limited to) avoidance relationships
  • The use of Indigenous languages, Aboriginal English and TSI Creole
  • Indigenous notions of time, mobility and place
  • Interpreters
    • Identifying the need for an interpreter
    • Qualifying & training interpreters
    • The role of the interpreter
    • Using interpreters effectively

Aim

These programs provide judicial officers with knowledge and understanding of sentencing law, principles, and types for Indigenous offenders.

Scope

These programs could encompass –

  • Relevant legislation, case law and principles of sentencing Indigenous offenders, including the Bugmy principle and key research relating to experiences of disadvantage and deprivation
  • Sentencing statistics for Indigenous offenders
  • Aims of sentencing and motivations of offenders
  • Cultural issues and sentencing
  • The impact and relevance of customary law
  • Effects of Imprisonment – on the offender, on families
  • Royal Commission into Aboriginal Deaths in Custody
  • Post-release support
  • Sentencing alternatives:
  • Youth diversion schemes/programs for young offenders
  • Community based orders
  • The role of community elders in the sentencing process
  • Sentencing where the victim is Indigenous
  • Indigenous courts
  • The role of Aboriginal and Torres Strait Islander organisations
  • The role of other services (such as transport) in supporting Aboriginal and Torres Strait Islander communities and sustaining a non-custodial sentencing plan
  • The relationship of the Aboriginal and Torres Strait Islander offenders to the community in your jurisdiction
  • Diversionary programs: the most appropriate Indigenous court

Aim

These programs develop an understanding of Aboriginal and Torres Strait Islander Peoples customary law and the legal system.

Scope

These programs could encompass –

  • Basis and principles of customary law
  • Role of customary law in Indigenous communities as a form of social organisation and justice
  • Identifying and discovering customary law
  • The place of customary law in the Australian legal system
  • Dispute resolution processes and sanctions in customary law
  • Regional variations
  • Whose ‘customary law’