Justice is not without issues for Aboriginal people. Many wonder what the outcome would have been had the plaintiff not been Aboriginal. In rare cases, compensation for injustices cost governments millions.
Justice at last – compensation for unjust treatment
When you look at Aboriginal incarceration rates it is not hard to conclude that there might be a racial bias in Australia's justice system.
It might go mostly unnoticed, but in some rare cases Aboriginal people received compensation for unjust and wrong treatment.
Palm Island: $30 million compensation and a formal government apology. The death in custody of Mulrunji Doomadgee in 2004 led to Palm Island man Lex Wotton being convicted of inciting the riots that followed the death. But Mr Wotton launched legal action on behalf of the community in 2014, accusing the Queensland government and police of being racist in their response to the incident. In its ruling in December 2016, the court found that police had violated the Racial Discrimination Act, awarding Mr Wotton $220,000 in damages and opening the door for compensation to hundreds of Palm Islanders who also claimed they were discriminated against. In May 2018 the Queensland government agreed to pay $30 million and deliver a formal apology to Palm Island residents. [1]
Western Australia: $1.3 million for wrongfully accused man. Pintupi man Gene Gibson, from the remote community of Kiwirrkurra near Broome, was arrested and charged in 2012 with manslaughter. He pleaded guilty to the charge on instructions from his lawyers and was sentenced to 7.5 years’ jail, but the conviction was overturned on appeal on the basis that he did not have the cognitive ability or English language skills to understand the legal process. He was released from jail in April 2017, and a year later the Western Australian government granted $1.3m in compensation. [2]
Victoria: $3.2m for an elder's death in a hot police van. The family of Mr Ward, an Elder from Warburton, 72 kilometres east of Melbourne, who died from heat stroke after travelling in an unairconditioned prison transfer van, was granted $3.2m. [2]
Western Australia: $1.1m and a state apology for a death in custody. In September 2017, the family of Yamatji woman Ms Dhu, who died in custody in a Pilbara police station in 2014, was awarded a $1.1m ex-gratia payment and a formal apology from the Western Australian government. [3]
Justice? Compare these cases
So you thought you could trust Australia's justice system to be just?
Compensation
Compensation for an Aboriginal woman
Compensation for a white man
After spending more than two years in prison Jeanie Angel, a 47-year-old Aboriginal woman was acquitted of murder. [4] An all-white jury found her guilty in 1989. She never received a formal apology or compensation.
A man was falsely arrested and detained in police custody over a minor traffic infringement in March 2004. [5] A district court judge ordered NSW police to pay compensation to the man. His time in jail: three hours.
A$0 — compensation for two years in jail.
A$55,000 — compensation for three hours in jail.
Promoted for what?
'From little things big things grow'—such as promotions. Even if the little thing was causing death.
Promotion
Demotion
In 2004 Senior Sergeant Chris Hurley 'fell' onto an Aboriginal man he was to arrest for being drunk. The man died a short time after. After three months on paid leave the sergeant resumed his duties on a different post, effectively having been promoted. [6]
After posting photographs on his Facebook profile of drunk Aboriginal men in custody a Western Australian policeman was stood down from duty and investigated. [7]
Story:
The day the Queen lost her case
The following story tells of a judgment Lionel Murphy wrote as a judge of the High Court—Neal v The Queen. [8]
"Mr Neal was Council Chairman in Yarrabah, a community in Northern Queensland. This community had a deep sense of grievance about the paternalistic treatment by white authorities, including the management of the store which was reportedly selling rotten meat.
Mr Neal had argued with the store manager about the management of the reserve. When the discussion reached an impasse, Mr Neal swore at the store manager and spat at him.
For this, Mr Neal was sentenced to two months' hard labour. On appeal to the Queensland Supreme Court, Mr Neal's sentence was increased to six months.
Mr Neal then appealed to the High Court, where Lionel Murphy presided.
The year was 1982, and Murphy noted in his judgment the appallingly high rates of Indigenous incarceration at that time - that although Indigenous Australians [then] made up only one per cent of the total population they made up nearly 30 per cent of the prison population.
In addressing the question of Mr Neal's relatively harsh sentence for what was a seemingly trivial offence, he said:
'That Mr. Neal was an "agitator" or stirrer in the magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. ... Mr. Neal is entitled to be an agitator.' (at 317)
Needless to say, Mr Neal's appeal was allowed."
Intergenerational imprisonment
Intergenerational imprisonment is a term used to describe the fact that if an Aboriginal child has a parent in jail, there is a higher likelihood that they will also go to jail, creating a vicious cycle [9].
Lawyer Hannah McGlade speaks of "accumulated trauma" in Aboriginal communities which the Western non-Aboriginal courts are ill-equipped to address or resolve [10].
"It's the level of accumulated trauma that results in family-dysfunction which is a significant cause for the over-contact with the court system."
Police have to cover huge distances
In the Torres Strait police and Islanders are facing a unique challenge. It's an area with more than 100 islands, 20 of which are inhabited.
There are only 30 police officers stationed on Thursday Island, in the southern part of the region. This means it can take police anywhere between 6 hours and 3 days to respond to an emergency call, depending on boat and aircraft resources [11].
For some islands the nearest police station is over 200 kilometres away.
On Western Australia's Dampier Peninsula a multi-functional police station (which can also be used as a courtroom) has eased life in Aboriginal communities which was under-serviced by police. Prior to the station opening police response time was "never or it would take about 24 hours" [12]. Police presence prevents a lot of incidents from happening.
Highly dysfunctional communities benefit from "dramatically" reduced family violence and less substance abuse.
It was the quietest Christmas we've had for a long time because of the general awareness that the police were just down the road.
— Andrew Carter, chairman, One Arm Point Community [12]
The challenges of being an Aboriginal lawyer
Vanessa Turnbull-Roberts is a young law student. The Bundjalung woman has very personal reasons for studying law, and a very sharp perception of the challenges of becoming an Aboriginal lawyer.
"As an Indigenous student studying law, you’re reminded every day of what you don’t have. In corporations law you're reminded you don’t have tenure to your land. In criminal law you're reminded all your people are being locked up, removed from their families and communities and subjected to punitive measures rather than support.
"The year that Kevin Rudd gave his apology to the stolen generations was the same year I was taken [away from my family].
"I’d like to see a First Nations independent children’s law firm that represents the voices of our children who are being removed. I want to be able to use this law and social work degree to show that you took me, but I’m coming home and I’m going to make sure you’re not touching any other children." [13]
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