David Plater, Deputy Director, South Australian Law Reform Institute and Associate Professor, Adelaide Law School, Adjunct Associate Professor, University of Tasmania, David.Plater@adelaide.edu.au;
Emily Conroy, SALRI Researcher, emilyconroy3@gmail.com;
Katelin Lawrie, SALRI Researcher, Katelin.Lawrie@adelaide.edu.au;
Brooke Washusen, SALRI Researcher and PhD Candidate, Brooke.Washusen@adelaide.edu.au.
Introduction
‘As an Arrernte woman, I don’t see my people as “vulnerable”. My people have survived genocide, assimilation, racism, inhumane treatment and discrimination. This is evidence of our strength, not our vulnerability’ (Howell 2024, p 119).
This observation by Indigenous woman, Ammie Howell, highlights the problematic concept of Indigenous ‘vulnerability’ within the Australian criminal justice system. Indigenous people are not ‘vulnerable’, but Indigenous accused (as well as witnesses and victims) do face many structural and systematic barriers. This contribution discusses these historical and continuing issues and raises insights from law reform and academic research, drawing on the work over a decade of the South Australian Law Reform Institute (SALRI) and other key sources. This contribution raises broader conversations about meaningful reform by examining legal responses to systemic inequality. Measures to address the inequality of Indigenous accused persons have been extensively examined, yet meaningful change has proved elusive. Any reforms must recognise the historical and continuing intersectional disadvantages facing Indigenous communities, avoid paternalism and crucially include and be led by the direct voices of Indigenous communities.
SALRI is an independent law reform body based at the University of Adelaide formed under a MOU between the University, the South Australian Law Society and the South Australian Government. SALRI is not an advocacy body (Plater & Williams 2022). SALRI is committed to ongoing and ‘honest and respectful’ engagement with Elders and Indigenous communities and draws on the unique linked Law Reform class. The issues affecting Indigenous accused and witnesses regularly arise in SALRI’s projects, including intermediaries, witness competence and adult safeguarding. See existing SALRI projects for further discussions of this (Plater et al, 2021; Plater et al, 2022; Plater et al, 2023). The authors acknowledge there are various perspectives as to the preferred terminology and the authors use the term ‘Indigenous’ to both refer to Aboriginal and Torres Strait Islander people, using that term with utmost respect.
- Issues Relating to Indigenous Accused
- A particular issue arising for Indigenous accused (and witnesses) in Australia is the highly problematic concept of ‘vulnerability’.
There is a statutory definition of a ‘vulnerable’ witness in South Australia within section 4(1) of the Evidence Act 1929 (SA). However, there is no generally accepted definition of ‘vulnerability’ (Plater et al, 2022). There is also no single definition of a ‘vulnerable’ accused, which adds to the difficulties in identifying an individual’s ‘vulnerability’ (Meysman, 2014). The term ‘vulnerable’ is increasingly problematic (Plater et al, 2022; Fineman 2019; Dehaghani 2023; Fairclough 2024). It has been noted that:
Vulnerability is a concept fraught with paradox. To start with, the concept is in common use but its meaning is imprecise and contested. Confusing, complex, vague, ambiguous are but a few of the labels scholars across disciplines have used to refer to it (Peroni & Timmer 2013, p 1056).
- In addition, there are well established and multi-faceted historical and continuing issues and barriers facing Indigenous communities, both in and out of court (Alexander et al, 2024). The ‘unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples’ are compelling (ALRC 2018, 6.14) and the legacy of colonialism and the very real effects of intergenerational trauma on Indigenous communities should not be overlooked (Law Council of Australia, 2018; ALRC, 2017). As Charlie Jackson, a leading Adnyamathanha Elder, has said: ‘They need to understand all the external forces that [caused] enormous amount of trauma to our ancestors.’ (Harms, 2021). SALRI has been often reminded of these factors.
It is well established that Indigenous communities are drastically overrepresented in the Australian criminal justice system. This is longstanding (Australian Government Publishing Service, 1991). The figures for both Indigenous adults and children are stark ‘It is distressing and unacceptable that Aboriginal people in Australia are the most incarcerated people in the world’ (Advisory Committee into the Incarceration Rates of Aboriginal People in South Australia 2023, p 7-8). As one study noted:
- The imprisonment rate for Aboriginal people is 12.5 times higher than the rate for non-Aboriginal and Torres Strait Islander people. The proportion of Aboriginal and Torres Strait Islander people in prison continues to rise. Aboriginal women are incarcerated at more than 20 times the rate of non-Aboriginal and Torres Strait Islander women, and the overall rate for Aboriginal women is up 148 per cent since 1991. The Aboriginal and Torres Strait Islander juvenile detention rate is 25 times higher than it is for non-Indigenous young people (Law Council of Australia 2018, p 5).
There are wider issues for Indigenous people within the Australian justice system. As the Law Council of Australia has said:
Many Aboriginal and Torres Strait Islander people have experience of intergenerational trauma linked with the justice system, and many also have personal prior experience of it working ‘against them’ instead of ‘for them.’ This lack of trust ‘affects all aspects of the interaction between Indigenous Australians and access to justice’. It has led to police, government, social services and the law being viewed as a tool of oppression by many (Law Council of Australia 2018, p 30).
The issues confronting Indigenous accused and witnesses are far from only historical (Alexander et al, 2024, p 168-170). There are continuing systematic and structural barriers for the equitable and meaningful participation of Indigenous victims, witnesses and defendants, particularly in the courts (Plater et al, 2021; Law Council of Australia 2018; ALRC 2010). These complex issues include language, culture, history, disability, discrimination and intergenerational trauma (Plater et al 2021).
Whilst Indigenous people obviously can testify, broadly speaking, significant barriers remain in ensuring this evidence can be given meaningfully and effectively. According to the Royal Commission into Institutional Responses to Child Sexual Abuse, quoting R v B [2010] EWCA 4, [42], many Indigenous witnesses are unable to give their ‘best evidence’ or meaningfully participate in the proceedings (Royal Commission into Institutional Responses to Child Sexual Abuse 2017, p 5-6). While this was in the context of children who were historically prevented from giving evidence under oath, its application is wider. The stark issues confronted by Indigenous witnesses in colonial Australia under the witness competence laws of the 1800s are not simply consigned to history (Alexander et al, 2024).
However, whilst there is an overwhelming understanding of the barriers faced by Indigenous Accused within courts, using a broad stroke term such as ‘vulnerable’, serves to exacerbate these barriers by creating a ‘one size fits all’ remedy that does not suit the unique, complex and evolving issues faced by Indigenous people within courts.
Observations to Date
The role and application of ‘vulnerability’ to Indigenous accused and witnesses is a complex question that extends beyond legislative drafting. Whether and how the Evidence Act 1929 (SA) and/or other laws should be amended to fairly and respectfully apply to Indigenous accused and witnesses is an unresolved issue. There are inherently problematic and paternalistic implications in classing Indigenous people automatically as ‘vulnerable’. As one Elder previously told SALRI: ‘Aboriginal people were never vulnerable, it is the system that has made us vulnerable … We are not vulnerable people’ (Plater et al, 2022, p 238).
The wider historical and continuing context facing Indigenous communities is one of systemic, cultural, political and social barriers in accessing justice. Whilst many attempts have been made to close these gaps, none have yet proven successful. The acute historical and continuing issues and barriers affecting Indigenous people in Australia as witnesses and victims (and indeed also as suspects, accused persons and litigants) are well established on an historical and continuing basis (Alexander et al, 2024). Any effort at law reform or wider change must bear this vital context in mind.
The regular amendments to the Vulnerable Witness provisions in South Australia and elsewhere, while increasing access to supports, arguably divides participants and increases the perceived stigmatisation of some groups. It also has the practical effect of rendering the vulnerable witness scheme ever more expansive and unwieldy. For these reasons, the authors raise the removal of statutory ‘classes’ of vulnerable persons and instead raise the expectation that any court should consider the means by which all persons can give their best evidence and meaningfully participate in the process.
In other words, any court should be required to consider and undertake whatever reasonable adjustments may be necessary to facilitate the best evidence and equitable and meaningful participation of anyone before it, whether litigant, accused, witness or victim. How this will translate in practice, will be different depending on the individual.
Conclusion
The authors acknowledge that this is a radical reappraisal of the current system which has been progressively added to over the last 30 years by ever more categories of ‘vulnerable’ parties. Simply adding new classifications of ‘vulnerable’ parties may be well intentioned, but is unlikely to prove effective to respond to the acute underlying issues for Indigenous accused persons and witnesses. There is also the concern that simply adding more classes to the already expansive term of a ‘vulnerable witness’ will render the scheme unwieldly, if not unworkable. It has been argued that any person who enters the criminal justice system as a witness or an accused person is de facto rendered vulnerable (Fairclough 2022). It is problematic to arbitrarily assign this to Indigenous people specifically.
The authors reiterate the broader conversation about meaningful reform by examining legal responses to systemic inequality. Measures to address inequality of Indigenous accused have been extensively examined, yet meaningful change proves elusive. Any reforms must avoid paternalism and include and be led by the direct voices of Indigenous communities.
Note of Acknowledgment
The authors acknowledge the role of Andrew Alexander to the present project. As Mr Alexander powerfully says:
‘The inability of the law in the first half of the 1800s to allow the testimony of Aboriginal witnesses and recognise Aboriginal custom and beliefs, raises wider questions. As a Noongar person from the south-west region of Western Australia, law student and a keen observer of the law and the importance of legal history it pains me to think that equality before the law has still not been achieved even today. This topic has become more important to me since beginning my legal studies at Flinders University. Looking back through the history of law in Australia and the timeline of progress with respect to Aboriginal equality, there is much work still to be done’ (Alexander 2024, p 139).
Meaningful change for Indigenous accused requires a systematic response. The authors do not speak for Indigenous communities, but seek to promote critical reflection and legal analysis.
Reference List
Alexander, A, Plater S, Nicholls, H 2024, ‘Outlaws in their Native Land: The “Incompetence” of Aboriginal Witnesses in 19th Century Colonial Australia’ in C Griffiths & L Korporowicz (eds) English Law, the Legal Profession and Colonialism: Histories, Parallels and Influences, Routledge, pp 139-173.
Dehaghani, R, Fairclough, S, Mergaerts, L (eds) 2023, ‘Vulnerability, the Accused, and the Criminal Justice System: Multi-Jurisdictional Perspectives’ Routledge
Fairclough, S, ‘Vulnerability in the Criminal Trial’ in E Johnstone (ed) Challenges in Criminal Justice (Routledge 2022), Ch 6.
Fairclough, S 2024, ‘Resilience-building in Adversarial Trials: Witnesses, Special Measures and the Principle of Orality’ Social and Legal Studies
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Defending Vulnerability 