The Supreme Court is being asked to decide whether men can be banned from the courtroom, in a case that highlights one of the many cultural issues faced by Indigenous Australians within the current justice system.
The case centres around a 16-year old Indigenous girl, who was strip searched by police after she allegedly threatened to harm both herself and police officers.
According to the police, the girl produced “items” from under her clothes when she was arrested in Wagga Wagga for stealing a Mitsubishi Pajero.
The teen has pleaded guilty to stealing the car but has denied four counts of assaulting police officers; allegations which include that she smashed two body-worn cameras and spat in the mouth of a female police officer.
The girl’s lawyers will seek to have evidence of the alleged assault excluded on the basis their client was illegally strip searched.
A piece of evidence central to the case is a 38-minute video recording of her being strip searched. In the footage, the girl’s bra and chest can be seen, and her bare backside is also exposed.
The Aboriginal Legal Service (ALS), which is representing the teen, has also made an application for the case to be heard in an all-female courtroom.
The ALS submits that in Indigenous culture, showing a woman’s private body parts is considered “women’s business”, and that allowing this to be shown to me would cause the teenage girl ‘cultural shame’.
Initial application and appeals
The Wagga Wagga Children’s Court refused an initial application to ban male police witnesses from being present in court while the video of her exposed body parts was shown, as well as to have the case heard by a female magistrate.
The ALS appeal the decision to the Supreme Court of New South Wales, where the application was also dismissed, with Justice Helen Wilson saying that courts had no power to exclude men from the courtroom.
The Justice found that while there was a “need for recognition of the importance of cultural and gender-based adjustments”, this was secondary to the administration of justice.
The ALS is now appealing this decision to the Full Court.
One size fits all ‘justice’
It’s a case that raises legitimate questions about the adequacy of the justice system in meeting the needs of Indigenous Australians.
And it is far from the first time these issues have been raised.
Last year, the Black Lives Matter protests aimed to highlight the litany of issues with the current system, such as ingrained racism, the fact that the majority of people in authority are white Australians, the targeting of Aboriginal people by police, unlawful strip searches of Indigenous children, arrests for minor offences, police brutality, and the high rates of both incarceration and indigenous deaths in custody.
The current system is failing
In 2018, the findings of the The Australian Law Reform Commission (ALRC) Pathways to Justice Inquiry, led by federal court judge Matthew Myers, found that Commonwealth, state and territory governments must undertake an overhaul the justice system in order to reduce the massive over-representation of Indigenous people in prison.
The inquiry was commissioned by the Federal Government to investigate whether courts, police and prisons were contributing to the over-incarceration of First Nations people.
The conclusion was a resounding yes. The inquiry concluded that the current system is further entrenching inequalities by not providing appropriate sentencing options or diversionary programs for Indigenous offenders.
One of the inquiry’s 35 recommendations was that:
“Where needed, state and territory governments should establish specialist Aboriginal and Torres Strait Islander sentencing courts. These courts should incorporate individualised case management, wraparound services, and be culturally competent, culturally safe and culturally appropriate.”
There have also long been calls for a specialist indigenous children’s court.
Circle Sentencing is a success
In New South Wales, Circle Sentencing exists as an alternative sentencing method for Aboriginal offenders. It was introduced 2002, and is now available in 12 New South Wales Local Courts.
Under Circle Sentencing, the magistrate works with Aboriginal elders, victims and the offender’s family to determine an appropriate sentence.
Sometimes police are also included in the process. Circle Sentencing deals with most offences, except very serious offences such as murder or sexual assault. To be eligible for Circle Sentencing, the defendant must plead guilty.
The results of the scheme are positive with a NSW Bureau of Crime Statistics and Research (BOCSAR) study reporting last year that Aboriginal people who participate in Circle Sentencing have lower rates of imprisonment and recidivism than Aboriginal people who are sentenced in the traditional way.