11 minute read
Editor’s Opinion
Jason MacLaurin SC
Editor, Brief | Barrister, Francis Burt Chambers
This is a bumper edition of Brief with a special feature celebrating the (COVID delayed) 50th anniversary of the District Court, which was actually commenced on 1 April 1970.
While the more formal (and, importantly, social) aspects of celebrating the District Court’s anniversary were deferred for a year, this is an experience shared with many. This includes those who were unfortunate enough to have their scheduled weddings bumped for a year, the only silver lining, from a legal perspective, being the community’s enhanced appreciation of the Australian Consumer Law in the fallout, involving irate brides and grooms on the one hand, and reception centres, caterers, DJs, bakers, and Bucks and Hens Night venues and associated service providers on the other.
While deferred weddings are an unfortunate outcome from COVID, many viewers of the recent series of Married at First Sight are no doubt wishing that those particular weddings had been put off until that iconic date of the 25th of Never.
The much-appreciated contributors to the District Court’s 50th anniversary celebration provide informative insights into the Court, its importance and service to the community, the personalities involved in it, as well as its handling of present day challenges and future. Brief is privileged to have both Chief Judge Wager’s article on the History of the Court and an interview, which provide valuable insights. We also have Judge Gething and his associte’s article about technology and the Court, and Richard Utting’s reflections from apractitioner’s perspective. It is a quirky fact that the Court’s first day was April Fools’ Day 1970. On the same day, John Lennon and Yoko Ono’s April Fools’ Day joke was to announce they were undergoing mutual/dual sex change operations. Today, this would barely raise an eyebrow, would hardly be recognised as a jest, and, given the nature of celebrities nowadays, probably lead to outpouring of Twitter copycat announcements. Lennon and Ono may well have been early trailblazers of the COVID lockdown and quarantine lifestyle, voluntarily doing much the same thing with their 1969 “Bed-ins for Peace” , though their choice of hotels for their “quarantine” were not exactly spartan, being the Hilton Hotel in Amsterdam and Montreal’s Fairmont Queen Elizabeth Hotel. April Fools’ Day does remind us of the importance of humour in all aspects of life and in particular towards leaders and powerful figures. IThe history of the Court Jester is an telling example of a character whose purpose was what is now described as “speaking truth to power”, being to keep check on the egos and hubris of leaders and the elite classes Remarkably, for times in which seditious or irreverent proclamations were often rewarded with a trip to the tower, the stocks, or the executioner, jesters were afforded extraordinary indulgences and protections, and were generally beloved and respected by their rulers. It is also a happy example of an equal opportunity profession, as there are many legendary female jesters – including Astaude du Puy, jester to Charles I of France and his Queen Henrietta Maria and La Jardinière, Jester to Catherine de Médicis (although as to the latter, history does not seem to record much to laugh about in de Médicis reign). The character of Rigoletto, of Verdi’s great opera, is based on the jester Triboulet who served French Kings Louis XII and Francis I of France (to opera lovers, Rigoletto would be familiar as the inspiration for the modern concept of “lock up your daughters”). Triboulet, whose jests were so cutting against the elitist class that he was not infrequently physical abused and threatened, came up with a brilliant and lawyerly-crafty response when he complained to King Francis I about a nobleman’s threat to beat him to death. When the King told him “If he [the nobleman] does, I will hang him a quarter of an hour afterward”, Triboulet replied “Ah, Sir!— “couldn’t you contrive to hang him a quarter of an hour previously?” Jester “Archie” Armstrong (to James VI) went too far in his jibes against influential people and was punished by being discharged from the King’s Court, having “his coat pulled over his head”, which seems an odd punishment, but one that probably foreshadows the modern self same phenomenon engaged in by celebrities emerging from a hotel after an illicit affair, or a criminal defendant leaving Court. Perkeo, jester to Heidelberg’s Elector Palatine Charles III Philip, is a Heidelberg legend honoured by a statue standing over a huge vat in that city, in tribute to what was an apparently incredible capacity for drinking wine, which, so the story goes, is all he drank, until, in his 80’s, he fell ill and the town doctor made him drink water, whereupon he died the next day. Another great anniversary from this time 51 years ago is Wynns wines, in 1970, perfecting the “bag in a box” and “chateu cardboard” wine cask , that had been previously developed and marketed by Angoves and Penfolds. The Americans had used “Bag-in-a-box” packaging as early as 1955 to transport battery acid, a fact which gives rise to jokes which almost write themselves about cask wine, and which no doubt would have been seized upon immediately by the likes of Perkeo, Archie Armstrong, Triboulet, Astaude du Puy, and La Jardinière. This bumper edition of Brief has a variety of articles to make sure there is something for everyone. The he Law Society’s Tax Committee is a regular contributor to Brief, and we have Jonathon Leek on the Family Trust Distribution Tax. We also have Executive Director Libby Fulham’s important item on the Legal Practice Board’s online CPD management system, Justice Melissa Perry on Issues of Legality and Best Practice, and UWA lecturers Tamara Tulich, Ben Reilly and Sarah Murray’s informative articles on The National Cabinet. We also have a number of reports upon social events, so please be sure look at the social pages to find your photo!
Pending
Endnotes
1 It is difficult to ascertain how many fell for the hoax, though it might be accepted that, given the angst at the time about Ono’s apparent potential for disrupting the band, that it was believed by irate hard core Beatles fans, and perhaps also by Paul, John and Ringo. 2 And is fair to say that many in the legal profession entered into lock down or quarantine looking like Paul and Linda McCartney and ended up looking like John and Yoko. 3 It is unclear whether things are going to get better for de Médicis’ reputation given that last week it was been announced that Samantha Morton, who played the villainous Alpha on “The Walking Dead” will star as the “nefarious” Catherine de Medici in the series “The Serpent Queen”. 4 The History of the Court Jester by Magda Romanska 24/3/2014 Boston Lyric Opera, blog.blo.org 5 Chisholm, Hugh, ed. (1911). “Armstrong, Archibald”. Encyclopædia Britannica. 2 (11th ed.). Cambridge University Press. 6 Perkeo Perkeo of Heidelberg: The dwarf-jester who was in charge of the largest wine barrel in the world, Jan 2, 2017 Marija Georgievska 2/1/2017 thevintagenews.com 7 https://australianfoodtimeline.com.au/tag/1970s. 8 Older readers will fondly remember Orlando’s Coolabah wine cask, launched in 1973, which became famous with the advertising campaign “Where do you hide your Coolabah?”
If you want to join a progressive law fi rm with a great team culture, there’s a spot for you.
Pragma Lawyers is an innovative & proactive law fi rm that has grown exponentially since establishing in 2014. We are moving to new Rokeby Rd premises in July, with plenty of room for quality lawyers, small practices interested in a merger, or teams of lawyers looking to join a progressive organisation with a great culture. Lawyers with established client bases are preferred. Pragma is a specialist dispute resolution and litigation fi rm, and we are interested in establishing new practice areas, too.
To learn more about this opportunity, visit pragma.law/join or contact Jana Dugandzic via jana@pragma.law
Brief welcomes your thoughts and feedback. Send letters to the editor to brief@lawsocietywa.asn.au.
Indigenous Incarceration, Addressing an Upward Trend
By Greg McIntyre SC
Why are Aboriginal peoples still being imprisoned at disproportionate rates?
This year is the 30th anniversary of the report of the Royal Commission into Aboriginal Deaths in Custody. The disproportionate rate at which Aboriginal people are imprisoned has risen in that period rather than decreased. It has borne a significant relationship to the number of Aboriginal deaths in custody.
The Royal Commission noted that Indigenous prisoners comprised 14% of the prison population in 1999. The rate of Aboriginal imprisonment has since doubled and made up 28 percent of the Australian prisoner population in 2019 and accounted for 18 percent of all deaths in prison custody, while in the most recent census, Aboriginal and Torres Strait Islander people accounted for no more than 3 percent of the Australian population.1
Since 2004, the number of Aboriginal people in custody has increased by 88% compared to a 28% increase for non-Aboriginal Australians. In 1992 one in seven prisoners was Aboriginal. By 2020 that ratio had risen to one in four.2
The RCIADIC was established in 1987. It examined the cases of 88 men and 11 women who died in custody between January 1980 and May 1989. The youngest was aged 14.
It found the causes of death were “extremely varied” but that “their Aboriginality played a significant and in most cases dominant role in their being in custody and dying in custody”. The Royal Commission found that more Aboriginal people than others died in custody because they were “grossly over-represented in custody”. A “significant” factor contributing to this over-representation was found to be social, economic and cultural inequality.
The Royal Commission made 339 recommendations for state and federal authorities, including 35 relating to the investigation and notification of deaths, 13 recommending diversion from police custody, 30 on imprisonment as a last resort, and 36 on custodial health and safety.
A Deloitte review in 2018, found that 64 percent of the recommendations have been implemented in full, while 36 percent have been implemented partially or not at all.
Senator Patrick Dodson, who was a Commissioner in the Royal Commission, said the past 30 years have not addressed the underlying issues that give rise to this “awful blight”. “For too long, nice words, good intentions but the lack of action and commitment have not seen a reduction to the custodies or the deaths in custody,” he said. “It diminishes us as a nation, because we are incapable of dealing with it.” Since the royal commission at least 455 Indigenous people have lost their lives in custody, according to the latest available statistics from the National Deaths in Custody Program. 3
Western Australia
Western Australia imprisons Indigenous people at a much higher rate than any other jurisdiction in Australia, and uses community-based corrections less than most jurisdictions, as demonstrated by the charts below. Imprisonment rates have nearly doubled between 1990 and 2010.7
Aboriginal women in gaol
Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar AO has highlighted the high rate of Aboriginal women in prison.8 The AHRC reported in 20089:
Incarceration rates for women generally have increased more rapidly than for men and the increase in imprisonment of
Indigenous women has been much greater over the period compared with non-Indigenous women. 10 The Indigenous female imprisonment rate has increased by 34 % between 2002 and 2006 while the imprisonment rate for Indigenous men has increased by 22%. 11
Indigenous women are also 23 times more likely to be imprisoned than non-Indigenous women while Indigenous men are 16 times more likely to be imprisoned than non-Indigenous men.12 A large proportion of Aboriginal women are in custody because they have been unable to obtain bail. Another huge group of them have been there in default of paying fines which they were never going to be able to afford.13
A study of incarcerated women revealed that 67% of all Aboriginal women in prison had been incarcerated previously, while almost half this number of non-Aboriginal women had a history of incarceration. The lack of housing and support women receive upon release contributes to the high levels of re-offending.14
Unsentenced prisoners
In recent years, there has been a shift in relation to the purpose and use of bail, from an emphasis on the presumption of innocence to a focus on risk and community safety, and bail increasingly being used as a crime prevention tool.4 There were 4107 unsentenced Indigenous prisoners in the June 2018 quarter, accounting for 34% of Indigenous prisoners, 29% of all unsentenced prisoners and nearly 10% of all prisoners in Australia.5 Aboriginal people are more likely to be refused bail or arrested for breach of bail than non-Indigenous defendants.6
Aboriginal youth in gaol
Forty eight percent of the 10 to 17 year olds in gaols are Aboriginal.15 Aboriginal children constitute seven percent of the general Western Australian population yet over 70 percent of the prison population, making Aboriginal children in Western Australia the most imprisoned group of people on earth.16 Research indicates that time in a juvenile justice centre is the most significant factor in increasing the odds of recidivism.17
Mandatory sentencing
In 1992, the WA Government passed the first mandatory sentencing legislation imposing imprisonment for car theft, followed by the “three strikes” laws in 1996 imposing mandatory imprisonment for home burglaries. Since then, it has also passed the Criminal Organisations Control Act 2012, and mandatory sentences for people who assault custodial officers.
Mandatory sentencing laws have particularly failed WA’s Indigenous community, members of which have been incarcerated in even
