Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Karen L Pringle and Di Bennett
As part of the Queensland Government's response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), an Aboriginal Justice Advisory Committee (AJAC) was established' in Queensland in June 1993 by the Minister for Justice and Attorney-General, The Honourable Dean Wells MLA. The overall role of the AJAC is to provide the Qld Government and, in particular, the Minister for Justice and Attorney-General, with advice on Aboriginal perceptions of criminal justice matters, and on the implementation of the recommendations contained in the report of the RCIADIC. (See AboriginalLB 67/2.)
The purpose of this article is to inform members of both the Aboriginal and Torres Strait Islander communities and the wider community of two recent initiatives of the AJAC, namely, the Justices of the Peace Program for Aboriginal and Torres Strait Islander peoples and cross-cultural training for the judiciary in Queensland.
... the elimination of disadvantage requires an end of domination and an empowennent of Aboriginal people.[1]
With this approach in mind, the AJAC is keen to assist in overcoming Aboriginal and Torres Strait Islander peoples' usually negative interaction with the criminal justice system, whether as a victim of a criminal act, an accused person, or otherwise, by offering Aboriginal and Torres Strait Islander peoples opportunities to play positive roles within the system. To this end, the AJAC in consultation with the justices of the Peace Council in Queensland began developing, in September 1993, a justice of the Peace training program for Aboriginal and Torres Strait Islander peoples. A joint Working Party was established comprising representatives of the AJAC, the Justices of the Peace Council and of the Aboriginal and Torres Strait Islander communities.
After meeting on many occasions in order to consider a diverse range of matters, especially the cultural appropriateness of the content and delivery of any proposed training program, it was decided by the Working Party to pilot a Justices of the Peace training program for Aboriginal and Torres Strait Islander peoples initially in the Brisbane area. The purpose, of the Brisbane-based pilot program was to highlight the strengths and weaknesses of the program quickly and cost-effectively, while at the same time recognising that adjustments will need to be made to the program to cater for each individual community's needs. It was anticipated that once the Brisbane pilot program was completed and evaluated, the program would be launched in other areas throughout Queensland.
The pilot training program offered Aboriginal and Torres Strait Islander peoples the option of undertaking training to become a Commissioner for Declarations or a justice of the Peace (Qualified). These options represented the first two categories of officer established under the Justices of the Peace and Commissioners for Declarations Act 1991 (Qld). This Act establishes three categories of honorary lay. officials as follows:
Responsible for witnessing signaturess on a wide range of legal and official documents; taking statutory declarations; presiding over the swearing of oaths; taking affidavits; marking exhibits associated with affidavits; supervising affirmations; certifying 'true copies' of documents; assisting persons from interstate with witnessing documents; witnessing consent forms under the Marriage Act1961 (Cth); witnessing documents under the Land Titles Act 1994 (Qld); witnessing wills and taking dying declarations. .
Responsible for all the duties of a Commissioner for Declarations and, in addition, the issuing of search warrants; arrest warrants; remanding defendants; granting bail; adjourning a Court; complaints and summonses; domestic violence orders; and can be present at police interviews as an independent person.
In addition to the duties of the two previous categories, a Justice of the Peace (Magistrates Court), in the absence of a Stipendary Magistrate, has responsibility for hearing and determining charges of simple offences or indictable offences which might be dealt.with summarily where there is a guilty plea. A Justice of the Peace (Magistrates Court) can also commit defendants for trial or sentence by a superior court after an examination of witnesses.
It was recognised that there was a need for all three categories of officials across all Aboriginal and Torres Strait Islander communities in Queensland, however, at the time of the development of the pilot program, there was a need to give more consideration to the development of the category of Justices of the Peace (Magistrates Court).
There was an overwhelming response by members of the Aboriginal and Torres Strait Islander communities to the training initiative as reflected by the fact that over 100 expressions of interest were received by the Working Party, not only from people in the Brisbane area, but also from Toowoomba, Cherbourg, Gayndah, Nambour, Caboolture, the Gold Coast and many other areas.
The training program was officially launched by the Honourable Dean Wells MLA, Minister for Justice and Attorney-General, on 5-February 1994. Sixty-four people took . part in the several Commissioners for Declarations training courses offered, and more than 40 people took part in the Justices of the Peace (Qualified) training courses. All candidates displayed an eagerness which was sustained by ensuring that culturally acceptable trainers delivered the course together with an Aboriginal facilitator.
Candidates were only required to sit for a competency assessment test to become a Justice of the Peace (Qualified). In order to become a Commissioner for Declarations it is only necessary for applicants to satisfy certain checks relating to matters such as criminal history, traffic offences and to provide satisfactory referee's reports as to character and suitability. Excellent results were obtained by those who sat for the competency assessment test on 16 April 1994 to become a justice of the Peace (Qualified), and some candidates received a pass rate of 100%. The overall success rate was over 94%. It is expected that more candidates will sit for the competency assessment test during 1994.
In many respects the extremely high pass rate was due to the competency assessment tests being held in culturally appropriate environments with Aboriginal people supervising the examinations and helping to put people at ease. However, full credit must go to the trainers, and to the candidates, who diligently undertook their studies, and showed a true commitment to their endeavours.
From this training program it is clear that Aboriginal and Torres Strait Islander peoples want programs developed by Aboriginal and.Torres Strait Islander peoples for their own peoples. This. necessitates training Aboriginal and Torres Strait Islander peoples; where possible, to deliver these courses, adapting course materials to have a Mum perspective, and ensuring that those involved in both the development and delivery of such programs have had appropriate cross-cultural training, ensuring their understanding and appreciation of Aboriginal and Torres Strait Islander cultures. In this respect, reference should be made to RCIADIC recommendations 192 and 210.
At present, the pilot training program is still being evaluated, but it is clear that it has been an outstanding success. As a consequence, training to become Commissioners for Declarations, Justices of the Peace (Qualified) and Justices of the Peace (Magistrates Court) has commenced in Kowanyama and Palm Island, and to date these training courses have also been very successful. A pilot Justice of the Peace (Magistrates Court) training program has been launched in Longreach. Currently, the Working Party is considering further developing the training courses in light of both the success to date and more funding now being available to continue the program.
What is most important is that this .initiative will go far in. empowering many Aboriginal and Torres Strait Islander peoples in their communities. There will be a pool of officials to whom Aboriginal and Torres Strait Islander community members can look for the purpose of performing functions such as witnessing documents, and, more importantly, for assistance in safeguarding their interests with respect to such matters as the issuing of search warrants and being present at police interviews. From a wider perspective it is hoped that the performance of many of these duties, expecially those such as the right of a Justice of the Peace (Qualified).) to be present at police interviews, will prevent alleged abuses of Aboriginal and Torres Strait Islander peoples at such interviews and represent one small step towards satisfying this nation's obligations towards its indigenous peoples as laid down by many international instruments, including the International Covenant on Civil and Political Rights.
In many instances judges and magistrates have made special efforts to overcome what they recognize to be their lack of knowledge about Aboriginal culture andd the social rules which govern Aboriginal society. Whilst some magistrates have indicated to the Commission that they would be quite willing to participate in a formal program relating to these topics, there is positive resistance in some quarters to the very notion that judicial officers should receive formal training of this kind.[2]
In response to the findings of the RCIADIC, and heartened by the very positive response to cross-cultural awareness training by members of the judiciary in Western Australia, where a cross-cultural awareness training program was successfully piloted in 1993 (see AboriginalLB 61/23,66/7), the AJAC considered it timely late last year to consider developing a similar. program for the judiciary in Queensland.
As many are aware, the RCIADIC recommended that judicial officers and persons who work in the court service (amongst others) and whose duties bring them into contact with Aboriginal people be encouraged to participate in an appropriate training and development program, designed to explain contemporary Aboriginal society, customs and traditions. Such programs should emphasise the historical and social factors which contribute to the disadvantaged position of many Aboriginal people today and to the nature of relations between Aboriginal and non-Aboriginal communities today. Wherever possible, judicial officers and other persons who work in the court service should have informal discussions with Aboriginal and Torres Strait Islander peoples so as to enhance their cross-cultural understanding. (Rec.96) The RCIADIC also recommended that in devising and implementing courses referred to in Rec.96, the responsible authorities should ensure that consultation takes place with appropriate Aboriginal organisations, including, but not limited to, Aboriginal Legal. Services. (Rec.97)
The AJAC commenced discussions late last year with some members of the Judiciary in Queensland, representatives of the Australian Institute of Judicial Administration, representatives of the Aboriginal and Torres Strait Islander communities and many others with respect to developing a cross-cultural training program specifically for the judiciary in Queensland. The AJAC was very pleased with the positive reactions by members of the judiciary towards the development of a cross-cultural awareness program.
As a result of these initial consultations, a meeting to discuss strategies to develop a cross-cultural awareness program for the judiciary in Queensland was held on 18 April 1994. This meeting was attended by representatives of the AJAC, His Honour Mr Justice Seaman of the Supreme Court of Western Australia (who is actively involved in the development of crosscultural awareness programs for the judiciary in Western Australia and in other jurisdictions), representatives of the Australian. Institute of Judicial Administration, the Queensland and Commonwealth Attorney-General's Departments and others including representatives of the Aboriginal and Torres Strait Islander communities.
At this meeting it was confirmed that approximately $75 000 is available for the purpose of cross-cultural awareness training for the judiciary in Queensland.
It was recognised that in developing a cross-cultural awareness program, Aboriginal and Torres Strait Islander peoples' input was essential, and, where possible, they should deliver the program.
As a result of this meeting, it is anticipated that a sub-committee will be formed within the next few months with involvement from the AJAC, ATSIC, Aboriginal and Torres Strait Islander regional representatives, representatives of the Supreme Court of Queensland, the District Court of Queensland, the Magistrates Courts and of the Department of Justice and Attorney-General.
The above discussion highlights just two of the initiatives of the AJAC in Queensland which aim at improving Aboriginal and Torres Strait Islander peoples' perceptions of and interaction with the criminal justice system, and, in particular, hope to encourage Aboriginal and Torres Strait Islander peoples' more positive participation within the criminal justice system. The AJAC would be very interested to hear from others who are developing initiatives in the criminal justice area and invite submissions on any matter contained within its terms of reference. (See AboriginalLB 67/2.)
[1] National Report, Royal Commission Into Aboriginal Deaths In Custody, Overview and Recommendations, Commissioner Elliott Johnston, QC, AGPS, Canberra, 1991, p15.
[2] National Report, Royal Commission Into Aboriginal Deaths In Custody, Commissioner Elliott Johnston, QC, AGPS, Canberra, Volume 3,1991, p72.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1994/38.html