Aboriginal And Torres Strait Islanders Case Study

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It is to some extent that legal mechanisms have addressed issues facing Aboriginal and Torres Strait Islanders suffering disadvantage in Australia. The issues faced by Aboriginal and Torres Strait Islanders are significant in the Australian legal system, and include problems arising from evidence laws, criminal proceedings and bail laws. To begin with, the issue of evidence laws for Aboriginal and Torres Strait Islanders has been addressed through legal mechanisms. Particularly, maintaining secrecy when taking evidence from an Aboriginal or Torres Strait Islander causes considerable problems as Aboriginal customary laws can issue severe penalties on those who breach secrecy. Further, legal mechanisms have sought to address the issue of…show more content…
In some cases the presence of an interpreter has overcome this issue, however the problem remains when cultural differences disallow the translation of legal concepts unfamiliar to traditionally oriented Aboriginal and Torres Strait Islanders . While the rules surrounding fitness to plead originated from common law, the current Commonwealth Crimes Act 1914 determines one is only unfit to plead because of mental illness or intellectual disability, as stated in Divisions 7-9. Most state legislation also refers to illness and mental capacity, however such a disability or illness is not the case for many Aboriginal and Torres Strait Islanders. In Western Australia, fitness to plead is determined by the Criminal Law (Mentally Impaired Accused) Act 1996. Division 1 of the Act defines unfitness only because of mental impairment, which is stated as “intellectual disability, mental illness, brain damage or senility.” Such legislation is inefficient for Aboriginal and Torres Strait Islanders who rather cannot understand court proceedings. A significant case that highlights such injustice was Ngatayi v R [1980], in the Supreme Court of Western Australia. Ngatayi, an Aboriginal man, was being tried for murder, and communicated…show more content…
Bail laws are created in fulfillment of legal principles that ensure fairness and justice – that being, to preserve presumption of innocence, ensure the individual appears at court to answer allegations, protect victims and the wider community, and ensure criminal matters are resolved efficiently. Until 2013 in New South Wales, the Bail Act 1978 (NSW) governed bail laws, where these key principles were being severely overlooked. This was detrimental to many Aboriginal and Torres Strait Islanders, particularly juveniles, because amendments to the Act saw a reduced entitlement to being granted bail. This was reflected in heightened incarceration rates, where, “In the 4 year period from 2006-2010, the percentage of Aboriginal juveniles on remand increased by 48% from 1,639 to 2,445.” This statistic was relative to the amendments made to section 22A of the Act in 2007, which limited the number of bail applications Aboriginals could make unless new information was found. Further, the NSW Department Of Juvenile Justice’s 2010-11 Annual Report showed the “average daily intake of juveniles into detention was 434, 204 of which were Aboriginal and Torres Strait Islander.” However in 2013, following heavy criticism of the Bail Act 1978 (NSW) particularly because of the section 22A amendment, the Act was repealed and replaced with the Bail Act 2013.

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