Many Aboriginal people do not refer to themselves specifically as an Aboriginal person. Rather, they will identify themselves in accordance with their language group, tribe or clan. It is particularly important for duty solicitors who regularly assist Aboriginal defendants to become familiar with the language groups they are likely to encounter during their work.
Aboriginal people are not a homogenous group. Many Aboriginal people reside in urban areas whilst other Aboriginal people live on the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands) in the north-west of the State, and there are many different language or skin groups, traditions and cultural beliefs. Distinguishing between people living in urban areas and traditional people living on the APY Lands is important. However, close and integrated family and kinship networks, complex social and political relationships, values of community and obligation, land, law and culture are common features in all Aboriginal communities.
The responsibilities of duty solicitors when assisting Aboriginal people in courts of summary jurisdiction are no different to those which apply in relation to non-Aboriginal defendants [see Role of the Duty Solicitor chapter]. However, there are many unique attributes of Aboriginal societies, culture and history which should be borne in mind, and this chapter highlights issues which may arise when assisting an Aboriginal defendant, particularly a traditional Aboriginal defendant from the north-west of South Australia.
Many Indigenous communities and families suffer and continue to suffer ongoing emotional pain and upheaval as a consequence of colonisation, dispossession from land, loss of culture, the separation of families through past government policies, high levels of incarceration, ongoing discrimination and racism. Virtually all Aboriginal people have experienced institutional racism, repression and paternalistic attitudes from white authority figures. They, more than most other people, dislike being talked down to. An attitude of "noblesse oblige" from the duty solicitor will not aid effective communication and may provoke an angry response making legal representation so much harder. Again, courtesy, attentiveness, patience, and an ability to instil in the defendant confidence that one knows what one is about are vital attributes for a duty solicitor.
The Cross-border Justice Act 2009 (SA) applies within a defined geographical region at the intersection of the South Australian, Western Australian and Northern Territory borders [see Cross-border Justice Regulations 2009 (SA) reg 4 and sch 1] and will particularly apply to people located in the remote north-west of South Australia. The provisions of the Act apply upon suspicion or allegation of an offence committed within the region, and/or when an accused person is arrested in the region or normally resides in that region [see Cross-border Justice Act 2009 (SA) s 20(2)]. The provisions also apply for persons residing in the region at commencement of court proceedings [see s 20(3)]. Further information is available in the Police Powers and Forensic Procedures chapter as well as the Bail chapter.
There are a combination of language, cultural and social factors to be considered to best assist an Aboriginal defendant. This section will consider language and culture insofar as they interact and impact communication.
Aboriginal people in the remote north-west of South Australia may speak in the Western Desert language which has many dialects. Port Augusta has a settled population of Aboriginal people, and is also a traditional meeting place and crossroads for Aboriginal people who travel to and through this area from the north-west of the state and beyond. This means that people from many different Western Desert language groups are in this area at any one time.
For those people from the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), their first language may be Pitjantjatjara or Yankunytjatjara and their second language may be English. It is important to remember that Pitjantjatjara and Yankunytjatjara people identify as separate and distinct groups despite intermarriage between the two groups. Pitjantjatjara can be understood by Yankunytjatjara, Ngaanyatjarra, and Manjiljarra speakers. Interpreter services are available for both Pitjantjatjara and Yankunytjatjara, as well as several other Aboriginal languages.
There are two main services which have Aboriginal language interpreters available in South Australia. For further information on these interpreting services, please visit their websites as follows:
Be mindful that many people also speak Aboriginal English which is a recognised separate dialect of English. Not only may this be difficult to understand, it also incorporates indigenous words, and some English words have different meanings. As there is no interpreter service available to assist with Aboriginal English, the duty solicitor needs to be attentive when taking instructions in Aboriginal English to avoid making false assumptions and misinterpreting the defendant’s instructions. As discussed in the Role of the Duty Solicitor chapter, many legal terms and concepts are culturally foreign. It is therefore important for the duty solicitor to avoid using legal jargon, and instead to describe the situation the defendant is in and their rights in general terms and plain English. An interpreter would also be able to assist with this dilemma.
The Lawyer's Protocols for Dealing with Aboriginal Clients, Third Edition published by the Law Society of South Australia in March 2020 set out:
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It is the task of the duty solicitor to try to relate abstract legal rights to the immediate experience of the Aboriginal defendant and their situation. Aboriginal people whose second language is English may give the appearance of understanding the court process. The duty solicitor must be on guard against the possibility that this appearance is deceptive, and may signify a familiarity with police procedures only. The Lawyer's Protocols for Dealing with Aboriginal Clients sets out a 4-step process for assessing the need for an interpreter.
If the duty solicitor has reason to think that the defendant is unable to understand even the simplest concepts such as bail, adjournment or the circumstances that have brought them to court, then it will clearly be necessary to ask the court to arrange for the services of an interpreter [see Role of the Duty Solicitor chapter]. |
The Judicial Council on Cultural Diversity (the Council) has developed Recommended National Standards for Working with Interpreters in Courts and Tribunals These standards also recommend legal practitioners use the 4-step process outlined in the Lawyer’s Protocols as per the box above.
A further resource put together by the Council is the Interpreters in Criminal Proceedings Benchbook for Judicial Officers (PDF, 210 KB) These refer back to the recommended standards and cover other practical matters, as well as sample directions to the jury.
Gratuitous concurrence is when a person appears to assent to every proposition put to them even when they do not agree. For many indigenous people, using gratuitous concurrence during a conversation is a cultural phenomenon, and is used to build or define the relationship between the people who are speaking. For example, it may indicate respect towards a person, cooperation between people, or acceptance of a particular situation.
However, it is widely recognised that people who are in a position of powerlessness when confronted by alien institutions and authority figures, and who are disadvantaged due to a language barrier, may adopt a strategy of always agreeing or saying what they think the person in authority wants them to say, regardless of the truth of the matter. Gratuitous concurrence is not confined to traditional Aboriginal people from the north-west of the State [see Role of the Duty Solicitor chapter].
Often taking an indirect approach to seeking information is more appropriate when taking instructions from an Aboriginal defendant. This may avoid gratuitous concurrence, as discussed above, as it removes the necessity to respond to direct questions, or respond to questions with expected “yes” or “no” answers. Allowing a person to tell in their own words what has happened is culturally appropriate when taking instructions from an Aboriginal defendant and allows moments of silence and pause while thoughts are put together. Silence and pause are an important and normal part of communication and the exchange of information. A duty solicitor has to possess the virtues of patience and sympathetic understanding and must listen attentively to an Aboriginal person's story. The story and the telling of the story are essential aspects of Aboriginal culture. Stories are only revealed to people who can be entrusted with them [see Role of the Duty Solicitor chapter].
The use of body language is an integral part of communication for many Aboriginal people. For example, hand gestures and movement of the head and eyes can be important. Direct eye contact may be taken as a sign of aggression, rudeness or disrespect; lowered eyes and talking in a quiet manner may be seen as respectful behaviour.
Many of the points outlined below are further explained in the Australian Institute of Interpreters and Translators Inc information sheets, Interpreters: an introduction (PDF, 293 KB) and Communicating via an interpreter (PDF, 459 KB)
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On 1 October 2021, Part 5A- Custody Notification Service was inserted into the Summary Offences Regulations 2016 (SA).
Under regulation 33C, Aboriginal Legal Rights Movement Ltd (‘ALRM’) must be notified if an Aboriginal or Torres Strait Islander person is arrested. This includes a person under 18 years of age, in the youth jurisdiction.
The new mandatory custody notification scheme builds upon the existing ALRM Visitor Scheme, in which information can be found on the ALRM website (link opens new window)
A responsible officer is defined in regulation 33A as the police officer who is for the time being responsible for the custodial management of the person detained at the police facility.
What must the responsible officer do?
The responsible officer in respect of a person (including a child) detained at a police facility must, as soon as reasonably practical after the person is detained at the facility, ask the person if they are an Aboriginal or Torres Strait Islander person.
If the person identifies themselves as (or appears to the responsible officer to be) an Aboriginal or Torres Strait Islander person, the responsible officer must inform the person that ALRM will be notified by telephone of the person’s detention. If the telephone call is unanswered, ALRM must be notified by email to a dedicated email address provided by ALRM for that purpose (being an email address that ALRM has undertaken to monitor).
[reg 33C(1)-(1a)]
What information will be given to ALRM?
The responsible officer must notify ALRM by telephone (or email if required), and provide the name of the person (if known), details of the police facility, and the name and contact details of the responsible officer.
[reg 33C(2)]
How can ALRM help?
The responsible officer must at the request of an ALRM representative allow the ALRM representative to speak via telephone, or visit (or both) the Aboriginal or Torres Strait Islander person for a reasonable period.
The responsible officer must be available to speak with the ALRM representative as soon as reasonably practical after their visit or telephone call, to discuss any concerns regarding the welfare of the person (including any need for medical attention) or whether an interpreter or support person is needed when being interviewed or applying for bail.
[regs 33C(3)-(4)]
Are any records made of the notification?
The responsible officer is required to make a record of the following:
[reg 33C(5)]
What if the responsible officer refuses to make a notification?
A responsible officer who fails to comply with the requirements above (without reasonable excuse) may be subject to disciplinary action (under the Police Complaints and Discipline Act 2016 (SA).
[reg 33C(6)]
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and the final report handed down in 1991 demonstrated very clearly that disproportionate numbers of Aboriginal people compared to the mainstream community have contact with the criminal justice system. It is widely recognised that this contact has a destructive influence on Aboriginal communities, families and individuals. The over-representation of Aboriginal people in the criminal justice system continues to this day; arrest and imprisonment rates remain at disproportionate rates. Needless to say, a number of Aboriginal people have had a lot of experience of the criminal courts, Magistrates, police prosecutors and defence lawyers. Not surprisingly, they do not enjoy being defendants in criminal cases and in some cases hold cynical and negative views of defence lawyers. It is important for the duty solicitor to be culturally aware and behave in a culturally appropriate manner when assisting Aboriginal defendants.
Assuming that the language barrier has been overcome and the Aboriginal client is able to communicate effectively with the duty solicitor in English, then a variety of responses may be experienced. These responses are no different in kind from what may be experienced with non-Aboriginal defendants, but there will be differences in emphasis that reflect Aboriginal peoples’ cultures, society, world view and past experience. Both non-Aboriginal and Aboriginal duty solicitors may be experienced as alien because they are seen as part of the alien court system, and not “one of us”. Again, attentiveness, patience and courtesy to the defendant are of the utmost importance [see Role of the Duty Solicitor chapter].
Gender issues inevitably arise for duty solicitors dealing with Aboriginal people, particularly when dealing with traditional people [see Role of the Duty Solicitor chapter].
Aboriginal and Torres Strait Islander people have a disproportionate lower life expectancy and health status compared to non-Indigenous people. They die on average twenty years earlier than non-Indigenous Australians and infant mortality is three times higher than for non-Indigenous Australians. It is widely accepted that the ongoing disadvantage faced by Aboriginal people is due to a complex web of socioeconomic factors such as: poverty, overcrowding in houses, inadequate access to clean water and sanitation, inadequate access to education, housing and employment, lack of access to medical assistance and treatment, poor nutrition, drug and alcohol abuse (including petrol and solvent sniffing), ongoing discrimination and racism, dispossession from land, the separation of families, loss of culture, and emotional upheaval. Chronic diseases such as heart disease, diabetes, stroke, and renal failure are common and escalating, as is drug and alcohol addiction. Taking into account the prevalence of chronic illnesses within Aboriginal communities, it is important that the duty solicitor is aware that not all people who appear unwell or charged up are in fact high on drugs or alcohol, but rather are chronically ill.
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) showed that Aboriginal people were disproportionately represented in relation to the offences of assault, drunkenness and public order offences. The deaths investigated by RCIADIC showed time and again that alcohol withdrawal in particular is life threatening, and that alcohol intoxication is potentially dangerous because it has the effect of masking effects and symptoms of other life threatening illnesses and conditions, such as closed head injuries [see Role of the Duty Solicitor chapter]. Taking these factors into consideration, it is important for the duty solicitor to not make assumptions about the condition of any defendant and be vigilant to the possibility that instructions may be needed in order to have the defendant medically examined.
Clearly, some defendants will be under the influence of alcohol or drugs. Where it is impossible to take instructions, the duty solicitor is obliged to obtain instructions to have the matter held over until the defendant is able to communicate effectively. Instructions should be obtained to warn the cell guards of the defendant's condition, and to remind them of their obligation and duty of care towards that person [see Role of the Duty Solicitor chapter].
For many Aboriginal people, raising the name of a dead person will cause serious offence and is culturally insensitive. For those people who speak Pitjantjatjara, the deceased person’s name is not to be spoken until the grieving family decides the name can come back into use. It is a matter of respect for traditional culture that one does not disturb its members’ memories of the dead by reviving the use of their name. In place of the person’s name, the word “Kunmanara” is used. Kunmanara means “one whose name cannot be mentioned” or “no name”. It is used by all people who have the same name as a person who has died recently, and may also be applied to the duty solicitor if it is appropriate. The rule is simple: if the defendant calls the duty solicitor “Kunmanara” or if the defendant calls somebody else “Kunmanara”, then it is very important the duty solicitor does not use that person's name, but rather call the person in question “Kunmanara”.
In addition, the duty solicitor should be aware that it is culturally inappropriate to show community members material such as video, voice recordings and photographs which contain images of the deceased person.
The Magistrates Court of South Australia, when it sits in the north-west of the State, will consider ceremonial obligations as reasons for absence from court, however more weight is given to such submissions where supporting information is also provided. This particularly applies to people of the Western Desert Language Groups, who reside at Yalata, Oak Valley and in the Pitjantjatjara Homelands. It is helpful to remember:
Business usually takes place during the summer months, though this is by no means an invariable rule and there is usually a fairly long lead-up time prior to the occasion when the travelling starts.
It is obviously important to the maintenance of the tradition of the courts giving leeway to defendants at ceremony time that the present arrangements not be abused. Some communities have gone so far as to arrange for traditional leaders to speak with visiting Magistrates and to request them to impose bail conditions consistent with attendance on business, but requiring the immediate arrest of defendants who have absented themselves from the community during “business time” so as to go on a drinking binge. This is cited as an example of the seriousness with which community leaders regard the importance of Aboriginal people attending traditional ceremonies and not abusing the leeway that Magistrates give in those circumstances.
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The duty solicitor may encounter cases where a defendant desires to mislead you and the Court by making claims of an urgent need to go on business, when there is simply no basis for it. In those cases it may be relevant to get instructions to make further enquiries with the defendant's community or relations as to the actual situation. |
The same considerations apply when assisting an Aboriginal defendant apply for bail as for non-Aboriginal people [see Bail chapter]. However, there are a few considerations relevant to Aboriginal people which must be taken into account. Aboriginal people often have extended family and community networks. When bail is an issue it is desirable for the duty solicitor to know or to be able to find out how the family of the accused is reacting to his or her predicament. If the defendant wants bail because of an impending family funeral or birth, then they must emphasise in their submissions the importance of funerals and births to Aboriginal society and the need for the defendant to attend. It may be useful to call as witnesses senior members of the defendant’s family. Similarly communication with an Aboriginal defendant’s relatives may assist in bail applications by providing information as to possible guarantors, places to live or employment.
It may also be useful for the duty solicitor to get instructions to speak to an Aboriginal Justice Officer (AJO) as well as representatives of community organisations such as community development and employment programs, community councils, and Aboriginal health services, because they are in a unique position to provide information that will assist the Aboriginal defendant in court.
Sometimes instructions are obtained which would normally make it difficult to successfully apply for bail. An Aboriginal defendant may not have a fixed address, or may move from house to house, and in such a case, it will be important for the duty solicitor to demonstrate that these aspects of Aboriginal society are not inconsistent with an Aboriginal defendant being reliable when it comes to court appearances.
When dealing with traditional Aboriginal people whose second language is Aboriginal English, it may be prudent to not put relatives up as guarantors. The reasons for this are complex, but basically the notion of a guarantor under the Bail Act 1985 (SA) is very difficult to explain to traditional people, and is fundamentally alien to traditional societies' notion of an autonomous individual. The relationship of “guarantor” does not apply ordinarily, except in specific contexts which relate to Aboriginal cultural practices. Except in those specifically Aboriginal contexts, traditional people do not ordinarily take on responsibilities akin to that of a guarantor, although they may be very keen to do whatever is necessary to get their relative out of custody. It is certainly true that traditional people are often very frightened of the consequences of custody for their relatives. In those cases, where the Court demands a guarantor, it will be necessary to ensure that the prospective guarantor gives his or her informed consent to being a guarantor through the services of an interpreter and fully understands their legal obligations and the financial consequences if the bailed person does not attend court. Generally speaking, the supervision of a probation officer may be a more viable alternative than having traditional people serve as guarantors.
The same sentencing principles and considerations apply when assisting or representing an Aboriginal defendant with a plea of guilty and in making submissions in mitigation of penalty as for non-Aboriginal people [see Guilty Pleas and Sentencing chapters]. However, there are a few considerations relevant to Aboriginal people which must be taken into account.
Section 22 of the Sentencing Act 2017 (SA) provides for the sentencing of an Aboriginal defendant in a less formal manner by way of a sentencing conference, and empowers the sentencing court to take into consideration any views expressed at the conference [see s 22(1)(b)]. This section may be utilised by any court sentencing an Aboriginal defendant where the defendant consents to the process. Section 22(2), however, makes it clear that a sentencing court is not compelled to convene a sentencing conference if it so determines not to convene one after considering all the relevant sentencing principles, purposes and factors.
Therefore, the sentencing court has discretion as to whether or not a conference is convened.
Section 22 is outlined in detail in the Specialist Courts chapter.
The Sentencing Act 2017 (SA) sections 3, 4, 9, 10 and 11 prescribe the factors a sentencing court should consider when determining a penalty following a plea of guilty (discussed in detail in the Guilty Pleas and Sentencing chapters) there are some which are particularly relevant to Aboriginal defendants:
The Correctional Services Act 1982 (SA) allows for early release on home detention for Aboriginal or Torres Strait Islander prisoners serving a sentence of imprisonment who normally reside on traditional lands (including any place specified in the instrument of release as the person's residence) [see ss 37A(1) and 37A(6)]. However, prisoners sentenced in respect of certain offences, such as those involving violence, are not eligible for home detention [see s 37A(2)(d)]. For further information in relation to early release from imprisonment on home detention see the Sentencing chapter.
Detailed information in relation to pre-sentence reports and relevant considerations prior to requesting such a report is contained in the Guilty Pleas chapter. A pre-sentence report will provide the Magistrate with information on the physical or mental condition of the defendant, the personal circumstances and the history of the defendant [see Sentencing Act 2017 (SA) s 17(1)].
Detailed information in relation to psychiatric reports and relevant considerations prior to requesting such a report are contained in the Guilty Pleas chapter.
Anthropological reports may assist a sentencing court assess the social, historical, cultural, socioeconomic and environmental factors relevant to a particular community with whom an Aboriginal defendant may identity. Anthropological reports are valuable in providing a sentencing court with evidence ‘explaining Aboriginal heritage’ and is considered ‘ objective evidence in support of those personal matters which are put forward as mitigating factors particular to the person being sentenced ’ [see R v Smith (2003) 86 SASR 132 at 140-41; [2003] SASC 263].
The Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) amended the Crimes Act 1914 (Cth) in significant ways by removing cultural background as a relevant consideration for bail and sentencing procedures related to Commonwealth offences.
A court may not consider customary law or cultural practices in certain bail applications where these excuse, justify, authorise, require or lessen the seriousness of the alleged criminal behaviour, or aggravate the seriousness of the alleged criminal behaviour [see Crimes Act 1914 (Cth) ss 15AB(1)(b)(i) and 15AB(1)(b)(ii)]. The bail authority must take into consideration the fact a person is from a remote community in considering the impact of granting bail on that person [see s 15AB(2)].
Cultural background is no longer a specified sentencing consideration, with the relevant considerations being the character, antecedents, age, means and physical or mental condition of the person [see Crimes Act 1914 (Cth) s 16A(2)(m)]. Customary law or cultural practices used to excuse, justify, authorise, require or lessen the seriousness of the alleged criminal behaviour, or aggravate the seriousness of the alleged criminal behaviour are not relevant factors in the sentencing process [see s 16A(2A)].
See the Sentencing chapter for information relating to the power of a sentencing court to discharge a matter without conviction. Cultural background is no longer a relevant consideration for the discharge of offenders without proceeding to a conviction [see Crimes Act 1914 (Cth) s 19B(1)(b)(i)]. Customary law or cultural practices used to excuse, justify, authorise, require or lessen the seriousness of the alleged criminal behaviour, or aggravate the seriousness of the alleged criminal behaviour are not relevant factors to be considered in determining the discharge of a matter [see s 19B(1A)].
A Magistrate conducts the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), Coober Pedy, Leigh Creek and Ceduna criminal court circuit with the court sitting in the more populated areas of the APY Lands such as Ernabella, Amata, Fregon, Indulkana and Pipalyatjara.
The courts and registries located at Ceduna, Coober Pedy, Port Pirie and Kadina open only at court circuit times.
The Port Augusta, Whyalla and Port Lincoln Magistrates courthouses are open every weekday. Other courts, such as the Supreme, District and Youth Courts, also operate from these courthouses from time to time
See the Specialist Courts chapter for information about Aboriginal courts in this State.
The National Report of the Royal Commission into Aboriginal Deaths in Custody (1991) recommended that judicial officers and court staff 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. It also recommended that they participate in informal discussions with members of the Aboriginal community to improve cross-cultural understanding.
The Court's Administration Authority of South Australia, together with PY Media, has produced a video capturing the expectations, experiences and reflections of judicial officers and court staff who travelled to the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands) in 2011. The trip was funded by the National Judicial College of Australia and is an example of the implementation of the Royal Commission's recommendations.
The video is called The Ripple Effect and is available to view through the Court's Administration Authority You Tube channel.
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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