Judges must overcome inherent bias, says respected author
Australia’s justice system is racist and bigoted and judges refuse to acknowledge their own cultural biases, Aboriginal academic Dr Stephen Hagan has said in a new book.
Dr Hagan, a Kullilli traditional owner of southwest Queensland and senior director of Alliance Management at Batchelor Institute of Indigenous Tertiary Education, said
Aboriginal and Torres Strait islander people were often given tougher custodial sentences than non-Indigenous people.
He said judges could develop discriminatory views of Indigenous people—without even realising it—leading them to hand down unfair custodial sentences.
Dr Hagan’s book, The Rise and Rise of Judicial Bigotry, came after five years of research.
He said many Indigenous people felt let down by the justice system, particularly in the wake of the controversial Elijah Doughty trial in Western Australia.
In July, a 56-year-old man from the WA Goldfields town of Kalgoorlie was found not guilty of manslaughter over the 14-year-old’s death, but sentenced to three years in jail for dangerous driving causing death.
The man fatally ran over the teenager, who was on a motorbike, in Kalgoorlie in August last year. He was chasing him because he believed the motorbike had been stolen from his home. Doughty’s death sparked riots in Kalgoorlie and protests were held around Australia after the trial.
Dr Hagan said he was addressing the “elephant in the room” in his book.
“It’s not about the police who are arresting Aboriginal people,” he said. “At the end of the day it is the judges and the magistrates who impose custodial sentences.”
He said he compared cases in his research.
“In order to make a statement that judges are inherently racist or are bigoted, I needed to be able to validate that position,” he said.
“In other words, I needed to go back and look at comparable court cases where a white person and an Aboriginal person are before a judge for a similar case.
“But I needed to go further than that. I needed to go right back and look at the origin, history and accumulation of racist thought.
“I wanted people to understand how you can be inherently racist but not know about it.”
Dr Hagan said he hoped the justice system would reflect on its role in the rising numbers of Aboriginal and Torres Strait Islander people being jailed.
“I am asking people to have a deep look at themselves,” he said.
“They’re not admitting that they are a part of the problem, they think it is Aboriginal people who are infringing on societal codes of conduct and that they ought to be punished for it. “They are not looking at it as if they could possibly be excluding Aboriginal people from actively participating in society.
“A lot of people think they have answers about Aboriginal people, about incarceration rates and recidivism. They are not asking Aboriginal people . . .
“I want people to ask themselves if they think race relations in Australia are really changing. Is racist thought really changing?
“Sure, they don’t shoot Aborigines now, but they are locking them up and taking away all their civil liberties.”
A spokesperson for the Law Council of Australia, the peak body representing the legal profession in Australia, said without seeing Dr Hagan’s book they couldn’t comment.
But its president Fiona McLeod, SC, agreed that the current rates of Indigenous imprisonment were a national crisis.
“The Australian legal profession believes that while there is no silver bullet to reducing the imprisonment rate, there are a range of actions that should be taken immediately,” she said.
“The Council of Australian Governments should adopt ‘reducing Indigenous imprisonment’ as a key item on its Closing the Gap report, and the states and territories should establish and report on justice targets.
“Laws which have a disproportionate impact on Indigenous people should also be reformed.”
Ms McLeod said bail laws, for example, should be reformed to make sure Indigenous children were not held in detention while on remand, except in the most serious cases.
“We must stop imprisoning people who simply can’t pay fines,” she said. “Mandatory sentencing should be abolished across the board.
“The actions we need to take are clear and very achievable. The Law Council will continue to work with decision makers to make this change a reality.”
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