[Published in The Australian 9 May 2008]
In Victoria this week, Attorney-General Hulls announced a new Koori County Court costing $600,000 to set up and God knows what to run. It will “tailor sentencing orders to the cultural needs of Koori offenders”. Or as one of my clients might say, let me have their tailor!
Meanwhile, in South Australia, the Mullighan Report has identified terrible sexual assaults on Aboriginal children by Aboriginal men in the outback. Mullighan described the situation as comparable to a third-world country. SA Premier Rann immediately promised action by announcing a joint task force with the federal Government and increased numbers of police and child protection workers.
Two States, two different approaches to endemic problems for Aboriginals.
Victoria has opted to spend money on a touch, feely criminal court designed to give soft justice to Aboriginal (sorry, “Koori”) offenders. This is a stupid waste of money.
The new Court was foreshadowed in the County Court Annual Action Plan under the strange heading of Customer Focus to make sure that the “Court is responsive to court user needs and cultural and linguistic diversity”. This is odd because the Victorian Aboriginals do not retain any of their own languages and little, if any, culture. Customer focus based upon language and culture would be more appropriate for the Muslims, who have roughly the same numbers in Victoria as the Aboriginals. The Muslims also have a highly developed legal system (Sharia). The Aboriginals, on the other hand, would still be applying White Man’s law.
The new Court is supposed to be based upon the success of the Koori Magistrates Court which disposes of 150 Aboriginals a year in six courts – an average of one a fortnight.
The Victorian County Court (District Court elsewhere) deals with all indictable criminal matters except for murder.
The new Court will deal with “serious criminal matters” but Hulls has backed away from it dealing with sex offences. We cannot have an Aboriginal rapist receiving a culturally tailored sentence.
What is the purpose of the Court? We can judge its purpose from the official descriptions of the existing Koori Magistrates’ Courts which “sentences defendants who have pleaded guilty.
The Koori Court provides an informal atmosphere and allows greater participation by the Aboriginal (Koori) community in the court process. A Koori Elder or Respected Person, the Aboriginal Justice worker, Koori defendants and their families can contribute during the Court hearing. It reduces perceptions of cultural alienation and tailors sentencing orders to the cultural needs of Koori offenders.”
All very vague. I assume that it will still be up to the Judge to sentence the offender so all we are talking about is the presence and contribution of a support group who “contribute during the Court hearing”. But this is nothing new: any Magistrate or Judge must take into account these sort of matters. It is not necessary to fund a special racially-defined Court.
A long time ago, when I went to law school, we were taught that everybody was equal before the law. It didn’t matter what your colour or religion was, you got a fair go in Australian courts.
This year, the Victorian Charter of Human Rights and Responsibilities came into full force and what I had been taught became the law. Section 8 states “Every person is equal before the law”. This seems to directly contradict the concept of Koori Courts.
With Koori Courts, we now have a separate court system, a separate court procedures and no doubt separate punishments for a group of persons defined by race. We will be told they are “separate but equal”, which is the historical basis of segregation in the deep South of the USA and of apartheid in South Africa. These concepts are repugnant to us all simply because it is true that every person must be equal before the law. It is obviously impractical and undesirable to set up a Muslim Sharia County Court, a Jewish Court, a Vietnamese Court, a Sudanese Court or even a good old White Anglo-Celtic Court.
We now have a form of reverse discrimination, defined by racial characteristics and to be applied by the justice system.
And what is the purpose? Why is it that our existing judges in the County Court cannot (apparently) treat Aboriginal offenders properly?
There is really one answer: Aboriginals will receive different sentences for the same crimes. They will receive be lesser sentences than Whites, Asians or Africans for the same crime – otherwise there is no point in having a separate Court. And this is admitted by the Government when they say the Koori Magistrates’ Court “tailors sentencing orders to the cultural needs of Koori offenders”.
I have been around the criminal courts for more than 45 years and I can say, without exception, that all criminals have a “cultural need” when it comes to sentencing: not to go to jail. Nobody wants to go to jail. And, yes, I have acted for Aboriginals. In 1973 I set up the Aboriginal Legal Service in Alice Springs and then I worked at the Victorian Service.
Victorian Aboriginals are overwhelmingly mixed blood and often with 1/8th or 1/16th Aboriginal parentage. It is nonsense to say that a person of 1/16th Vietnamese and 15/16th European blood needs to have a special court to tailor his sentence to his Vietnamese “cultural needs”. Anyone making this argument would be laughed out of court. And yet, we will now make it the law in the case of Aboriginals.
Whilst we are on this point, let me say this. What on earth are the cultural needs of a 1/16th Aboriginal which enable his sentence to be tailored? If we are culturally tailoring sentences then surely his sentence should be tailored by his 15/16th European cultural heritage?
In any event, the result is that millions of dollars will be wasted in Victoria by the introduction of softly, softly sentences for “Kooris”. The money could be better spent in providing Aboriginal children with food, education and medical care so that we can increase their life expectancy in Victoria (and Australia for that matter) from a figure of about 20 years below that of the rest of the community.
At least South Australia recognises the problem and is trying to deal with it.
