ATSI JUSTICE
The problem of imposing Western legal practices on ATSI people, and the case for practical justice reforms ALEXANDRA KENNY, FINAL YEAR LAW STUDENT, ADELAIDE LAW SCHOOL
Alexandra Kenny is a final year Law Student at Adelaide Law School who will soon begin her legal career as a graduate at WRP Legal and Advisory. As part of the final year law subject Evidence and Advocacy, she examined the impact that Anglo Australian procedural and evidentiary law and practice can have on Aboriginal people, and considers options for reform.
legal processes prior to taking any legal instructions, using plain English where possible, and assessing whether any other disability or impairment is evident which impacts the client’s ability to understand. Of course, these initiatives are dependent upon there being sufficient resources available, which is not always possible in remote regions.
T
COURT PRACTICE
he South Australian (SA) legal system is founded on Western ideals and practices. This, coupled with systemic societal issues facing Aboriginals and Torres Strait Islander (ATSI) communities, like poverty and lack of education, has resulted in ATSI people being hindered in their access to the system. ATSI people can be vulnerable when arrested or questioned by police for reasons of language, culture, and communication style. This vulnerability is then repeated in the court process particularly when ATSI people appear as defendants and witnesses. This paper looks at current processes and proposes areas for reform.
CONTRASTING CULTURES The ATSI legal system differs substantially to the Western legal system. Overall, ATSI peoples’ legal system is more flexible, community driven and proceedings recognise both history and emotion.1 There are deeply ingrained social and cultural communication preferences, which are not readily understood in a typical Anglo Australian legal system, with recognition of cultural needs only rarely resulting in variations to taking evidence, or other court process. 2 An example of this contrast is that certain knowledge can only be known by particular genders, and thus if asked questions in the presence of the opposite sex, ATSI peoples refuse to answer the question at hand.
12 THE BULLETIN April 2021
SA INITIATIVES TO PROTECT ATSI PEOPLE: QUESTIONING AND ARREST Historically, ATSI people have experience significant disadvantage during arrest and questioning by police because of language, communication issues and contrasting cultures. This creates a procedural fairness issue. These issues were first addressed in Australia in the Northern Territory, which introduced the Anunga Guidelines which require, for example, an interpreter to be present, care in administering the caution to ensure proper understanding, and the presence of a “prisoner’s friend” whom an ATSI person has confidence in. In 1976, SA adopted the Anunga guidelines, requiring that ATSI peoples be advised by police that, wherever possible, they can access a prisoner’s friend for interviewing assistance, as well as an interpreter.3 These guidelines are supplemented by the Police Commissioners General Orders,4 which require police “to advise Aboriginal Legal Aid if an ATSI has been arrested or taken into custody’.5 It is also required that police tape ATSI suspects being told about their Anunga rights, and being advised of the right to let someone know where they are.6 SA has also adopted an adaption of the Northern Territory protocols (the protocol).7 The protocol requires engaging an interpreter if needed, explaining the lawyers’ role to the client, explaining the
There are a number of areas in which cultural differences are sharply evident including the use of direct questioning, the cross-examination process and rules of evidence. Direct Questioning There are two assumptions in the Anglo-Australian fact-finding process: that asking questions is most effective for information finding, and asking many questions is the most effective for discovering lots of information. In contrast, ATSI people have different assumptions: namely that indirect methods are more effective to find out personal information, and asking many questions is ineffective. Additionally, ATSI people may be confused by questions asking for choice between two alternatives, which is a common line of questioning in Anglo Australian advocacy, but not common in many ATSI cultures. Cross Examination Cross examination is central to the Anglo-Australian system to test the truthfulness of a witnesses. The process is based on two assumptions: firstly, that an effective way to test truthfulness is to put conflicting propositions forward as conflicting answers indicate dishonesty. Secondly, inconsistency, when interviewed about a story previously recounted suggests unreliability. 8 ATSI people, already averse to direct questioning favoured in Anglo Australian
