Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Melanie Little and Patrica Trezise
The writers are retained as Barristers and Solicitors in the Port Augusta office of the Aboriginal Legal Rights Movement Inc (SA) - (ALRM). Views expressed in this article are personal views and not necessarily the views or policies of ALRM. It should be noted that our work takes us to many Aboriginal communities throughout the north of South Australia and these communities are varied, as is the police presence in each. We do not have access to any meaningful statistics which can be put forward to support our views. We would welcome the opportunity to inspect accurate statistics and review our observations on policing of Aboriginal communities in South Australia.
The South Australian Police Force maintains a constant, although not high, profile in many of the towns and communities in northern South Australia. While it is clear that many Aboriginal people have a negative attitude to police, and we are not seeking to suggest there is no basis for this negativity, there remains a belief within the communities that police are thereto assist in times of emergency and trouble. It has been our experience that Aboriginal people generally do not hesitate to contact the police for assistance in an emergency. However, once the emergency is over and parties have resolved their differences, any on-going police prosecution often causes tension within the family or community concerned.
In South Australia drunkenness per-se is no longer a criminal offence. However, under the Public Intoxication Act (PIA), a person can be detained by the police due to their state of intoxication and kept until they are sober. The great majority of PIA detainees are Aboriginal people. The process of apprehension and detention can lead to incidents which result in charges being laid. Escalation of a situation can often be attributed to inadequately trained and skilled police officers.
The checking of a person's "bonafides" can lead to tensions between the police and the individual. It is of concern to the writers, that Aboriginal people are often stopped by police and asked a series of questions, for example, their name, address, where they are going, what they are doing.
The inference is clear that there is some reason to suspect the person may have warrants, or may be up to `no good'. Aboriginal people have often expressed their frustration at this procedure and, in particular, the manner in which it is carried out. It is clear that this procedure often leads to Aboriginal people being arrested for street offences such as offensive language and disorderly behaviour.
In South Australia a person can be arrested or reported for an offence. If a person is reported, they are not always summonsed to attend Court as later investigation may reveal that an offence is not made out. Importantly, if a person is reported they are not placed in police cells and they are not subjected to police exercising their discretion as to whether they will be allowed bail. Once arrested the matter will always go to Court and the question of bail becomes an issue. If police bail is refused, or if warrant checks reveal the person can be held on a first instant (that is a warrant for failing to attend Court), or non-payment warrant, the person remains in police custody until Court or until the non-payment warrants are served.
It is the writers' view that, in our region, Aboriginal people are arrested, as opposed to being reported, far more often than nonAboriginal people. It is our belief that, wherever possible, a person should be reported for an offence rather than arrested. This would minimise the numbers of people in custody, ensure that charges before the Courts have been thoroughly investigated and ensure that the most appropriate charge has been laid.
Access to trained interpreters of Aboriginal languages, especially Pitjantjatjara, is an on going problem in our practice. We are regularly contacted by the police and the courts to assist in finding an interpreter for an individual. Occasionally, `Records of Interview' are conducted without interpreters for people who properly require them. Although such interviews can be challenged, there is no guarantee that such a challenge will be successful. Just as importantly, for a person whose first language is, for example, Pitjantjatjara, undergoing a police interview without an interpreter will involve greater personal stress than would be experienced by a person whose first language is English. A police interview is stressful enough without a person being denied an interpreter when one is required.
There have been police aides in the Pitjantjatjara Lands in South Australia for some time and our office has considerable contact with the police aide officers which are located at each of the large communities on the Pitjantjatjara Lands. Police aides are respected members of the community and are nominated to be aides by the community itself. The aides havethe powers of investigation and arrest. They are particularly concerned to police the liquor, petrol and gambling by-laws on the Pitjantjatjara Lands. There is one police officer based at Amata and all other police officers are based in Marla. These officers regularly go on "patrol" through the Pitjantjatjara Lands. Although we are not in a position to make any comments as to policing on the Pitjantjatjara Lands, it cannot be left unsaid that the recent imprisonment of two police aides and a police warden from the Pitjantjatjara Lands for raping a woman in their custody, undoubtedly created a negative atmosphere for the three police aides in Port Augusta who recently commenced employment.
Aboriginal police aides have also commenced work in the Elizabeth area (a northern suburb of Adelaide) and we understand these are the first police aides in the metropolitan area. It is too early to assess the success or otherwise of the police aide scheme. We are personally wary of the introduction of police aides in communities such as Port Augusta as we believe the very intimate and personal knowledge aides have regarding the Aboriginal community could just as easily be used against the community as it could to assist the community. However, as it appears from our discussions that the Aboriginal community welcomed the introduction of police aides in Port Augusta, we will actively support the project.
The police complaints system in South Australia is, in most cases we are associated with, an ineffectual and inconclusive system. Rarely are serious allegations of police excesses investigated thoroughly. It is common for complaints to be dismissed by the Police Complaints Authority after the person has pleaded guilty or been found guilty by a Court of related offences. Often these offences have no real link with the complaint and we are waiting to find a suitable case to challenge this exercise of discretion by the Police Complaints Authority.
Many complaints we receive are directed at the attitudes, language and lack of sensitivity of the police officers. Our clients see their Aboriginality as the key to police rudeness and believe they are treated less favourably than non-Aboriginal people.
Since the Interim Report of the Royal Commission into Aboriginal Deaths in Custody, ALRM has been notified of arrests of Aboriginal people. Our office has a pager service for out-of-hours arrests and we have notified all relevant police stations of that number. We often become aware of arrests we have not been notified of. Lack of notification can be disadvantageous to our clients and we would like to ensure this procedure is tightened up in our region.
In South Australia, police prosecutions for juvenile offenders are governed by the Childrens Protection and Young Offenders Act in conjunction with other relevant legislation, such as the Bail Act, Summary Offenders Act and Criminal Law Consolidation Act. (see Wundersitz et al in AboriginalLB No. 44 for an analysis of the disproportionate impact of the SA juvenile justice system on Aboriginal children).
Young Aboriginal people predominate in the Children's Court list in Port Augusta out of all proportion to their percentage in the community. This does not appear to be the case in other towns we attend.
The reason for this is not known, but the situation is of great concern to the Aboriginal community. Recently, Port Augusta has been in the national news in relation to the suggestion of a curfew for young people This debate appears to have had an effect on police practices. As stated before, police have the option to either arrest or summons. Young Aboriginal people are very frequently arrested and often placed on bail with stringent conditions, including a curfew. Should the young person be found in breach of the bail conditions then they are further arrested, charged with breach of bail and then held in custody until the next available court.
This results in significant numbers of young Aboriginal people being held in the police cells overnight, occasionally over the weekend and even recently, over a three day long weekend. Despite constant requests to the police that young Aboriginal people not be arrested but be reported; that such young people not be held in police cells but immediately taken to Adelaide; the situation continues and appears to be increasing.
Very often young Aboriginal people are taken to the police station at night and then released. Some police then show these young people the door, rather than ensure they are safely taken home.
Young Aboriginal people often complain that the police take particular notice of them once they have been in trouble and sometimes to the extent of harassment. This is difficult to discount when considering the circumstances of some young peoples' involvement with the police. For example, one young man charged with a number of serious offences, was then charged, on two occasions, with failing to walk across a road with due care.
It is unfortunate that young Aboriginal children experience such negative interaction with the police as such attitudes will continue into their adult life.
For many of our clients there are significant language and cultural difficulties in their interaction with police We have some concerns that police are not sufficiently aware of these difficulties. We also believe that some police practices cause misunderstandings and problems in the relationship between the police and our clients. Any proposals to address problems between Aboriginal people and the police would be welcomed.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/21.html