Aboriginal justice issues need Aboriginal-led response

By: Stan Winford   |   Associate Director, Centre for Innovative Justice, RMIT University   |   https://www.rmit.edu.au/about/schools-colleges/graduate-school-of-business-and-law/research/centre-for-innovative-justice

Some people might be shocked to learn that Aboriginal children, forcibly removed from their families, were given criminal records.

Stan Winford

Uncle Larry Walsh, a Taungurung Elder, was two years old when the State took him from his mother Melva and made him part of the Stolen Generation. He found out much later that as well as being stolen, he had been branded a criminal. For much of his early life, Uncle Larry was targeted by police, and spent time in youth training centres. Even later in his life, while recognised as a leader by his own community, and having contributed to building community, educational and health organisations that continue to this day, Uncle Larry’s criminal history excluded him from playing a role in representing the interests of his community on government advisory bodies.

As hard as this might be to believe, it was common practice. In documents published by the Children’s Court, Magistrate Peter Power writes that “Babies, children and young persons before the Court were charged with being in need of protection and, if this charge was found proved, it would appear on a police criminal history sheet.”

Uncle Larry’s story and others like it led the Victorian government to apologise in Parliament for these practices, and in 2018, to enact laws to ensure that such records are no longer treated as criminal history. Later, in response to the Aboriginal-led and philanthropically funded Woor-Dungin Criminal Record Discrimination Project the Victorian government enacted laws to establish a spent convictions scheme which will come into effect later this year.

As well as highlighting the extraordinary injustice of these laws and their disproportionate impact on Aboriginal people, a significant aspect of the reform process was the way in which the Aboriginal leaders of the campaign used the Aboriginal Justice Agreement (AJA) to achieve change.

The AJA was established in 2000 as an agreement between the Victorian Government and the Aboriginal community, with the principle of self-determination at its core.

Similar agreements have since been established across Australia, including in the Northern Territory this year, to provide a process for ensuring the justice priorities of Aboriginal communities are addressed by governments.

The call for a legislated spent convictions scheme, presented in a powerful submission to the Aboriginal Justice Forum established under the AJA, was unanimously endorsed by the Aboriginal Justice Caucus, a self-determining body that represents the voices of Aboriginal communities and the Aboriginal community sector on justice issues. This sent a message to government about the urgent need for change that was impossible to ignore.

The AJA has driven several innovative and successful justice outcomes that build on community strengths, and it has been acknowledged that the process can help unlock the ‘enormous capability and expertise in the Aboriginal community’.

Despite the successes of the Victorian AJA, there is still some way to go before the principles of self-determination are fully realised in the context of Australian justice systems.

In Victoria, treaty and truth processes will help provide additional momentum. The Yoo-rrook Justice Commission will use the process of truth-telling over the next three years to uncover the broader context of colonisation, and the role of the State, including police, prisons and child protection agencies in driving the overrepresentation of Aboriginal communities in the justice system through dispossession, displacement, massacre and, as in Uncle Larry’s story, child removal.

Work by the First People’s Assembly of Victoria towards treaty will also support recognition of Aboriginal sovereignty and the right to self-determination, which includes the progressive transfer of resources, authority and responsibility from government to the Aboriginal community over time.

This is already beginning to occur in the context of child and family welfare, where there has been a transfer of power from State authorities to the Victorian Aboriginal Child Care Agency to deliver culturally appropriate services for Aboriginal children in care.

In Aotearoa New Zealand, the Treaty of Waitangi has underpinned a justice system that enables Māori-led approaches. Drawing on Māori culture, examples include Rangatahi Youth Courts which are held on traditional marae and follow Māori cultural customs; similarly, restorative justice and family group conferencing - where young people work with their whānau to develop solutions to reduce their offending - have replaced policing as the first response, significantly reducing Māori contact with the justice system. 

In Victoria, Aboriginal communities are working towards similar Aboriginal-led responses, drawing on the strengths of culture, and the guidance of Elders to provide community-led responses that connect people to culture and lead them away from the justice system.

It has been said that the people closest to a problem are closest to the solution, but often furthest from the power and resources. Experience suggests that the most effective responses to the over-representation of Aboriginal people in the justice system will be Aboriginal-led. For this reason, there is a role for philanthropy to support Aboriginal communities to address these challenges by contributing resources to Aboriginal-led responses.

Nov. 18, 2021

Philanthropy Weekly Newsletter

Sign up to our weekly e-newsletter for sector news, expert opinion and resources.

Sign up here