Diverse Groups, Access to Justice, and the Adversary System

Question 1

What are some examples of disadvantaged groups in Australia?

Answer 1

• Aboriginal and Torres Strait Islanders
• Women and Children
• People with Disabilities
• Refugees and Asylum Seekers
• Minors and young offenders

Question 2

Which High Court Cases have confirmed that there is no room for alternative legal systems such as Aboriginal Customary Law in Australia?

Answer 2

• Mabo v Queensland (No. 2) [1992]
• Coe v the Commonwealth [1979]
• Walker v the Commonwealth [1994]`

Question 3

In Australia, what power does ‘the Crown’ have?

Answer 3

To make and enforce the law and the legal system. The Australian legal system has not accommodated ‘any claim based on sovereignty adverse to the Crown’

Question 4

What has the High Court held in regard to Aboriginal sovereignty?

Answer 4

There is no discrete Aboriginal sovereignty that is adverse to the Crown and rejected claims that Aboriginal people or a group thereof constitute a ‘domestic dependent nation’. Attempts by Aboriginal Australians to expand the effect of the Mabo decision to have the common law recognise Aboriginal customary law generally are faced with the court’s regard for the sovereign power of governments and parliaments.

Question 5

What has the High Court held in regard to Parliament’s legislation about Aboriginal peoples?

Answer 5

The High Court has rejected claims that Australian Parliaments have no power to legislate in a manner affecting Aboriginal people without their consent. The application of Commonwealth, State or Territory laws to Aboriginal people is not subject to their acceptance, request or consent.

Question 6

What is a summary of Coe v the Commonwealth (1979) 53 ALJR 193?

Answer 6

Following the Mabo decision, the issue of sovereignty was again raised in Isabel Coe v The Commonwealth (1993) 118 ALR 193.

Isabelle Coe presented a claim on behalf of the Wiradjuri Kooris.

According to their laws, customs, traditions and practices the Wiradjuri people have lived on and occupied the land now known as central New South Wales, in whole or in part, since the early 18th Century.

Ms Coe’s claim alleged that the Commonwealth of Australia and then the State of New South Wales acquired the land illegally through acts of unprovoked and unjustified aggression including murder, acts of genocide and other crimes against humanity.

Ms Coe sought recognition of the sovereignty and autonomy of the Wiradjuri people.

This claim was rejected by Chief Justice Mason who regarded the claim as ‘untenable’ because it sought to challenge the sovereignty of the state. (at p 200)

Chief Justice Mason rejected the suggestion that the Mabo decision could be consistent with the assertions made in this case, saying:

‘Mabo [No.2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal peoples of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty … or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, State of New South Wales and the common law.’ (p200)

Question 7

What is a summary of Walker v NSW (1994) 126 ALR 321?

Answer 7

In this case the Plaintiff, Walker was an indigenous person.

He had been charged with a criminal offence by the State of New South Wales

The offence was committed at Nimbin, which is within the area of the Bandjalung ‘nation’ of indigenous people.

In response to the recognition of Aboriginal law in Mabo’s case Walker brought claim before the High Court asserting the operation of Aboriginal law in relation to criminal jurisdiction.

It was argued that Aboriginal law survived the assertion of sovereignty by the British and continued until extinguished by clear and unambiguous legislation.

It was claimed that general laws failed to extinguish Indigenous laws in that way.

A single judge of the High Court, Chief Justice Mason, rejected the notion that a system of law could operate along side the Australian legal system.

In Walker v NSW, Mason J (as he then was) stated: Mabo [No 2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are a ‘domestic dependent nation’ entitled to self government and full rights (save the rights of alienation) or that as a free and independent people they are entitled to any rights or interests other than 8 Debelle, p 87. 9 Debelle, p 87.

Question 8

Why is recognising Aboriginal customary legal systems problematic?

Answer 8

As a result of the way that customary laws have developed there are inconsistencies between states and communities that it extremely difficult to codify.

Customary law does not always align with international human rights standards. This raises questions as to which body of law would be considered sovereign.

Given the variations in customary law, how would a Judge decide which ‘version’ of customary law to uphold and recognise.

Question 9

What does codify mean?

Answer 9

arrange (laws or rules) into a systematic code.

Question 10

What are some examples of legislation that limits courts ability to consider customary laws?

Answer 10

Bail Applications
- Crimes Act 1914 (Cth)
- Bail Act 1982 (NT) altered by Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth).

Question 11

What are some key areas that need to be addressed in the court system?

Answer 11

• language barriers as the Adversary system relies heavily on spoken testimony and interrogatory questioning. This reliance on spoken English creates great difficulty for many Indigenous people.

Question 12

What are some examples where language barriers have created great difficulty for Indigenous people?

Answer 12

R v Watt [2007] and Ngatayi v The Queen [1980] HCA 18 147 CLR 1

Question 13

What is a summary of R v Watt [2007]?

Answer 13

Sexual assault case.

Victims native language was Wik Mungkan- she did not speak English.

Translator used was not sufficiently accredited.

Eve with the translator the victim struggled to communicate.

Judge noted inconsistencies in evidence, and that it could not be determined if these were due to language barriers.

The defendant was acquitted of all charges.

Question 14

What is a summary of Ngatayi v The Queen [1980] HCA 18 147 CLR 1?

Answer 14

• The defendant, Mr Ngatayi a trial Aboriginal man was charged with the murder of another Aboriginal man, Mr White.
• The defendant did not speak English.
• At his arraignment, pleaded guilty to murder through a translator.
• His lawyers argued that the plea should not be accepted, as he did not understand the charge.
• The court refused to accept the guilty plea, and the matter proceeded to trial.
• He was found guilty by a jury and sentenced to death.
• His lawyers appealed to the High Court, arguing that his inability to understand the law meant that he was not able to provide a proper defence.
• High Court found that as the court had entered a ‘not guilty’ plea and the matter went before a jury the system worked as it was meant to. Therefore, the appeal was dismissed.

Question 15

What are some recommended changes for trials to help resolve the imbalance against aboriginals in the criminal justice system?

Answer 15

Redressing the imbalance against Aboriginals in the Criminal Justice System made the following recommendations:-

Judges should give direction to the jury about the impact of translated testimony in court.

Judges should play a more active role to ensure “unfair’ questions are disallowed (leading ‘either or’ questions, questions requiring a quantifiable time, or offensive questions (referring to deceased Aboriginal persons by name) should be disallowed.

Aboriginal people should not be required to make direct eye contact (culturally considered rude or threatening).

Question 16

Why were Aboriginal or Nunga Courts created?

Answer 16

Created to try and close the gap between Aboriginal culture and practice and that of white Australians.

Question 17

When was the first Aboriginal court created?

Answer 17

First Aboriginal Court created in Port Adelaide in 1999.

Question 18

How do Nunga Courts operate?

Answer 18

Each operates slightly differently to accommodate the customs of the local Indigenous community.

Most of these courts operate at the Magistrate (lowest) level, however NSW created a Circle Court that hears some indicatable matters.

Circle sentencing practices have also been used in the SA District court in some matters.

Question 19

What are some differences between Nunga Courts and the Adversary system?

Answer 19

• Aboriginal Elders act in a supervisory role with the presiding officer (the Elder may comment on the behaviour of the Defendant).
• Magistrate of Judge sit at eye level with the Defendant.
• Some courts are arranged in a circle, to encourage discussion.
• In some cases, the court may sit at an alternative location.

Question 20

What are some advantages of Nunga Courts?

Answer 20

• Increased community engagement
• Increased court attendance
• Better relationships between Aboriginal peoples and the courts

Question 21

Do juries accurately represent Australia?

Answer 21

No, Aboriginal and Torres Strait Islander people are over-represented in the criminal justice system and Australian prisons.
They are under-represented on juries.

Question 22

What are some reasons for the under-representation of Aboriginal and Torres Strait Islander people on juries?

Answer 22

• Number of Aboriginal or Torres Strait Islanders excluded during jury selection.
• Distance from court
• Criminal History
• Not all Aboriginal and Torres Strait Islanders are enrolled to vote
• May be rejected as a result of a pre-emptory challenge.
• Insufficient command of English.
• Poor perception of the justice system and a reluctance to become involved

Question 23

What is the relationship between women and the adversary system?

Answer 23

• Statistically likely to have less access to financial resources.
• More likely to be victims of violence.
• As a group women are more vulnerable than men.
• Some groups of women are even more vulnerable:
  
  • Migrant
  • Aboriginal and Torres Strait Islander
  • Those living in remote communities
  • Women with disabilities.

Question 24

What are some issues with the adversary system and access to justice for women?

Answer 24

• Evidence obtained using the interrogatory method can be intimidating and traumatic.
  
  • Victims have to face their accuser in court. They have to give evidence, whereas the allege abuser has the right to silence.
  • In Family court, and civil jurisdictions women have to give evidence in the same court room as the alleged offender (in some Criminal Jurisdictions victims can be questioned in another room, or a limit placed on types of questions they can be asked by the Defence).
• Limited financial support can restrict access to legal advice or support.
• Most support services are not government funded, and cannot meet the demand for services.

Question 25

What is the relationship between children and the adversary system?

Answer 25

• In Australia, anyone under 18 is a considered a child.
• Children are especially vulnerable as they require adult intervention to access the Legal System.
• Australia is a signatory to the international Convention on the Rights of the Child (CRC).
• The CRC provides a framework for the rights and access to the justice system that children should have.
• However, this has not been enacted into domestic legislation, and is therefore not enforceable.

Question 26

What areas of law are children most involved with?

Answer 26

• Criminal Law
• Family Law and the Family court.
• Normally children do not normally choose to be involved in the legal system.
• Normally it’s due to parents of mandatory reporting.

Question 27

What factors limit access to justice for children?

Answer 27

• Can’t access legal system due to lack of standing and resources
• High likelihood that their claim will not be believed
• Most lawyers are not trained to work with children
• Legal language is confusing for children. The technical language used makes it hard for them to understand their rights
• They do not know of the legal services that are available
• Very few services that are actually targeted at children
• Children find courts very intimidating and confusing

Question 28

Why do the evidence procedures used in the adversary system place children at a disadvantage?

Answer 28

• The ACT and QLD have Human Rights Acts, that provide protection to children in Adversarial trials. However, most states don’t
• Often child witnesses do not understand the processes or what is expected of them
• When being cross-examined by a stranger, they are at risk of not being believed due to their age
• Also a high risk that the process will be traumatising for the child

Question 29

What is an independent children’s lawyer?

Answer 29

In some Family Court cases, an Independent Children’s Lawyer (ICL) will be appointed to ensure that the child’s best interest is served by any court decision regarding child custody. The ICL can be appointed by the court (under s68L of the Family Law Act 1975 (Cth)), on application by the child, or any other person or organisation invested in the welfare of the child. While the ICL is legally obligated to consider the perspective of the child (if they are above school age), they must come up with their own independent perspective about what they believe is best for the child.

To fulfill their role, the ICL will collate evidence to put before the court (which could include doctors and psychologists reports), help the child to participate in the court hearing (if appropriate), and negotiate with the child’s parents about the child’s needs.

Question 30

What is in place to minimise the negative impact on the life of a child offender which would occur if they were to be treated like an adult in the justice system?

Answer 30

Special legislation and courts exist to hear offending by children and youths

Question 31

What are some key differences between young and adult offenders?

Answer 31

• Youth court hearings are closed to the public, and the identity of a child offender not released in the media or accessible in court documents.
• When sentencing a young person being tried in court as a youth, primary consideration should be made for the youth’s rehabilitation.
• Penalties imposed by youth courts are typically limited to no more than three years detention, unless the nature of offending sees them treated as an adult.
• Police have alternate consequences issuable to young people not offered to adult offenders (such as family conferences) to try and resolve conflict before it reaches the courts.
• It is uncommon for youths in detention to remain in the youth justice system for a couple of years after attaining the age of 18 years.

Question 32

What barriers do people with disabilities face when trying to access the justice system?

Answer 32

People with disabilities appearing in court as a witness, or their ability to participate in a jury. Additionally, there are many case examples of people with intellectual disabilities being denied natural justice when it comes to ascertaining their competency to stand trial in cases being brought against them. While many of the practises below are designed to be protective in nature, in many cases they are simply exclusionary.

Question 33

What barriers do people with disabilities face when trying to give evidence as a witness?

Answer 33

• Often pre-judged by court participants, such as the judge, jury and lawyers because of preconceived notions about what it means for someone to have a cognitive or physical disability, or from behaviours exhibited by people with disabilities in a courtroom.
• Evidence Act 1995 (Cth) outlines standard for whether someone is considered competent to give evidence in a trial.
• Section 13 outlines the test of whether someone has enough capacity to understand a question to determine fact or give evidence comprehensively to the court, specifically mentioning people with a mental, physical or intellectual disability.
• Section 30 and 31 of the Evidence Act outline methods for assistance witnesses may have in order to present evidence in court. allow interpreters for people without a sufficient grasp of English, and witnesses who cannot hear or speak adequately may be questioned in an “appropriate way”. However, these resources are still fairly limited in who they allow to receive assistance during a trial.

Question 34

What barriers do people with disabilities face when trying to stand trial in regards to their competency?

Answer 34

• When determining whether a defendant will stand trial, it must be determined if the person is mentally competent.
• Determines potential mental illness at the time of an offence, and whether someone with an intellectual disability can understand the charges brought against them and the nature and process of a trial.
• The Australian legal system considers it to be immoral or unjust to try someone for a crime if they do not understand the connection between their actions, and the criminal process.
• It is up to the parties to prove ‘unfitness’.

Question 35

What are some case examples of what happens when disabled people are found to be ‘unfit’ to stand trial?

Answer 35

Marlon Noble – Western Australia and Rosie Anne Fulton – Western Australia/Northern Territory

Question 36

What is a summary of Marlon Noble’s case?

Answer 36

• Mr Marlon Noble was left intellectually impaired as a young child after contracting meningitis as an infant.
• In 2001, at the age of 19, Mr Noble was accused of sexual offences against two young girls under the age of 16.
• The prosecution and defence sought psychiatric assessments: he did not have the capability to enter a plea in his case due to his intellectual disability.
• The court made him subject to the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) and Mr Noble was unable to make a plea, or have a trial, and was instead sent to Greenough Prison indefinitely.
• In 2010, a psychiatrist determined that Mr Noble was fit to stand trial, and his lawyer then moved to bring the case to trial.
• In response, the prosecutors chose to not proceed with the case due to insufficient evidence, and an unlikely prospect of conviction.
• Considering that Mr Noble had been in prison far longer than a potential sentence for conviction of these offences would have been, it also did not make a lot of sense to pursue the charges from this perspective as well.
• Additionally, the mother of the girls in question, in addition to the girls themselves, refuted the allegations made against Mr Noble, and were active participants in calling for his release.
• Mr Noble spent 10 years and 3 months in prison without trial, and on release, was subject to strict community supervision, all without trial or conviction.
• In 2016, the UN Committee on the Rights of Persons with Disabilities found that Australia had breached its obligations under the convention in relation to Mr Noble’s case

Question 37

What is a summary of Rosie Anne Fulton’s case?

Answer 37

• Ms Fulton was born in Alice Springs, and unfortunately suffers from Foetal Alcohol Syndrome.
• As a result of this, she has suffered abuse for a significant portion of her life, and has spent time homeless.
• She spent some time in WA recuperating after an accident, and it was here where she was arrested for driving without a licence and under the influence of alcohol.
• Ms Fulton was arrested, and then determined to be unfit to stand trial, and was sent to prison under the same laws as Mr Noble
• After Ms Fulton’s case became known through the media, 120,000 Australians signed a petition on change.org to have her released.
• It is this petition that is credited with having the WA and NT governments arrange for her to be transferred back to Alice Springs.
• Ms Fulton was in custody, without conviction, for 22 months before she was released.
• The NT government initially organised for Ms Fulton to live in a house staffed with disability support workers, however, it was only five days later that she was arrested again in the NT for abusing the support workers while under the influence of alcohol

Question 38

What barriers do people with disabilities face in regards to juries?

Answer 38

• most people with physical or intellectual disabilities are deemed ineligible from sitting on a jury or are disqualified.
• For people with physical disabilities, such as blindness or deafness, they are removed from the jury pool due to their inability to hear and see the evidence being presented in court.
• People with intellectual disabilities are very often removed due to their inability to understand the nature of the evidence being presented to the court.
• In addition to perspectives being missing from the jury pool, it can also be argued defendants with a disability are not able to be tried by a jury of their peers

Question 39

What are some barriers refugees and asylum seekers face when trying to access justice?

Answer 39

• The cost of legal services
• Language barrier
• Restricted access to legal aid
• Limited funding to legal aid
• Lack of familiarity with Australia’s legal system and practises
• Distrust of governments and authorities due to previous experiences in other countries

Question 40

What are most of the legal complaints made by refugees or asylum seekers about?

Answer 40

Under the Migration Act 1958 (Cth), all refugees and asylum seekers who arrive in Australia without a valid visa must be detailed in immigration detention until their application for asylum has been processed. There is currently no legislated limit to how long a person can stay in immigration detention. This has formed the basis of many refugee claims of arbitrary detention, illegal under several international conventions.

Most of the legal complaints made by refugees or asylum seekers are challenges to the Australian government decisions in regard to their visa applications, or human rights complaints relating to their time in detention centres.

Question 41

What are some of the issues that migrants and non-english speakers face when accessing the legal system?

Answer 41

• Many recent arrivals have little to no understanding of Australia’s legal system (this includes both underlying principles and rights, as well as the structure of the system)
• Many recent arrivals have little faith or trust in legal systems due to their experiences in previous countries
• Some migrants may choose not to pursue legal action as they fear it may impact the government’s perception of them when determining their visa status
• There is a lack of interpreters available in the court system to assist migrants who do not speak English
• There is limited funding for legal aid services
• Migrants face potential exploitation from employers and landlords who may choose to break laws around their entitlements and take advantage of their poor grasp of English, or unfamiliarity with their rights as workers or tenants