Constitution's Treatment of Indigenous Australians Criminal

The Tony Abbott Memes just keep on coming. When another appeared yesterday I had a chuckle but felt, yet again, that while the laughs are cathartic they are also dangerous. Are we becoming too comfortable with the notion of powerlessness; with accepting there is nothing we can do but laugh?

  
The current government is not the first to let Indigenous Australians down and, sadly, probably won’t be the last.
We can blame politicians and change how we vote every 3 years, but many of Australia’s problems are systemic -so far simply voting differently is not proving a great strategy.

There is stuff Federal Governments could do, but there is a lot of stuff they can’t. Quite simply, Our Current Constitution gives States and Territories the power to make their own Criminal Laws.

ABS Imprisonment figures 2007 Population figures 2006

 

WA’s “three strikes law” is a Western Australian law. Those of us who don’t think a kid belongs in jail for stealing biscuits but don’t live in WA can’t do much except protest.

[If I’m right, WA Judges are also currently forbidden to adjust sentences if an Aboriginal person has already been subjected to a traditional punishment.]

The NT law that allows for paperless arrests is a Northern Territory law. Does the Northern Territory Government care what this Victorian thinks? Probably not much.

 

Charlie Pickering mentioned the CNS above – a NSW initiative that has helped prevent deaths in custody. Victoria has dedicated Koori [Magistrate] Courts that have had a positive impact on youth recidivism rates.

Does not look like one country with one set of decent values from where I sit.

 

It could be argued that the Federal Government could find ways to exert pressure on the States to lift their game. I would argue instead that this would take much longer than Indigenous people can afford.

Arguing that Federal governments should intervene is a federalist solution. It amounts in the long run to what I keep proposing anyway – take State Governments out of the equation altogether. Why don’t we just get on with it now, and do it effectively?

 

The discussion draft of a new, more democratic constitution has a bit to say, both directly and indirectly, about Indigenous Australia. [There’s probably more that it should say, but discussion is always invited].

With respect to Indigenous Justice, some key points in the draft are:

S90  - Procedural Fairness

b)    In Indigenous communities where there is limited knowledge of Standard English or understanding of concepts of Australian law;

1.    provide continuity of legal representation;

2.    provide, if necessary to ensure equitable sentencing of Indigenous Australians, culturally appropriate sentences consistent with the aims described under Section 103 a) of this New Australian Constitution Act;

3.    regularly review the legal needs of various communities and the implications of those needs for equitable judgments

 

S101 – Rights of Australian Citizens

The usual e.g. Freedom from disproportionate punishment, presumption of innocence, right to representation, etc

 

S103 [Probably the wrong spot to put this, but at least it’s there]

a)    the right to liberty and freedom may be vitiated where a citizen has been convicted of a crime and a sentence restricting liberty will assist in one or more of

1.    the protection and safety of the public

2.    proportionate punishment of the guilty party

3.    providing a deterrent to the commission of crime

4.    the rehabilitation of the guilty party

In other words, there are reasons for locking people up – being black or making the streets look tidy for tourists are not among them.

Until we have one clear, commonly accepted set of standards, systemic racism will remain a key feature of our "justice" system.

 

Common Decent Law

The overall thrust of the draft is to take the law back from governments who know they are omnipotent, and provide a clear contract that will make them accountable. We need a shift from over-regulation to common sense and a common law notion of what is reasonable.

And should some directly elected President think it’s okay to approve a law putting some kid in jail for stealing biscuits, the people would have the power to demand real change.  

 

You can read the text of the draft here or PM me through the facebook page and I will happily email you a more readable PDF. The draft DOES need everybody's input, it is just designed to start discussions. 

Please join the discussion if you agree Australia needs a new and more democratic constitution. If you don't want to use blogger, you can discuss the idea via facebook.

 

*More Info

WA three strikes law

Koori courts

Aboriginal English in the Courts ISBN 0-7242-8071-5