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The ‘inherent racism’ within the Australian legal system

More First Nations input is needed to improve the Australian legal and court system — which this criminal lawyer said would result in a system “less punitive and more culturally appropriate”.

user iconLauren Croft 23 January 2023 Big Law
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Sienna Lake is a criminal lawyer living and working on Miriwoong Gajerrong country in Kununurra, a town in the East Kimberley region of Western Australia, and was recently one of the recipients of the 2023 General Sir John Monash Foundation scholarship.

Ms Lake plans to study a master of social anthropology with a legal focus at the London School of Economics — and told Lawyers Weekly she is particularly interested in how Aboriginal and Torres Strait Islander people experience law and interact with the legal system in regional and remote areas in Australia.

“If the legal system is to be a fair system, one’s interaction with the law should not be negatively affected by one’s culture or geography. I hope to ultimately be able to bring anthropological perspectives and insights of people’s experiences to the criminal justice reform and legal policy debate in Australia.


“From my experience, I’ve noted distinct differences in how law functions in practice and how people experience legal processes, including interactions with police and arrest, experience on bail, experience at court and the provision of legal advice, and one’s experience of punishment. These differences, caused, at least partly, by geography, are important to understand to ensure that new laws and policy take these experiences into account,” she said.

“Aboriginal people of the Kimberley region are strong in their culture but are also exposed to high levels of criminogenic factors, generating overrepresentation in the criminal justice system and in prisons. How the criminal law operates in its pursuit of law and justice has direct ramifications for how the state treats some of the most vulnerable people in society. Understanding how the legal system affects vulnerable people living in remote areas is extremely significant to ensuring a fair legal system and robust rule of law.”

In her two and a half years of living in Kununurra, Ms Lake has seen a number of injustices — and said that her experience in the region as a lawyer “is a very privileged position to be in”.

“The injustices faced by Aboriginal people in the criminal justice system in the Kimberley extend beyond excessively high levels of incarceration. They include fines that last for years as your Centrelink is docked fortnightly, and one’s experience on bail that renders you homeless in a town that has no homeless shelter and relies on a sobering up shelter, closed on weekends. The injustice may be the five minutes you might get with a lawyer during a long court list when matters are called faster than legal advice can be provided,” she added.

“There is inherent racism in a system that requires understanding of European/Anglo-Saxon concepts of due process and right and wrong to make serious decisions about legal matters (especially in the allotted time provided). There are long nights and days spent in heavily air-conditioned cells and plane flights to travel to the nearest prison. There are 11-year-old children being held at police stations overnight with no access to family and only toast and meat pies for breakfast, lunch, and dinner.”

Therefore, more First Nations perspectives are needed within the region, Ms Lake emphasised.

“For too long, there has been a focus on research and submission papers that are generated in capital cities when examining legal policy and law reform, which is a world away from the lived experience of those interacting with the criminal justice system in regional and remote areas. This dichotomy is especially apparent in Western Australia — Kununurra is a three-hour plane ride from Perth, or 3,000 kilometres by road,” she explained.

“People’s stories and experiences are invaluable to understanding what can be changed and how it can be changed. There is a lot of talk and a lot of dot points that are generated in the name of First Nations’ access to justice. I hope that we will soon see more localised research and actual responses to the myriad of issues faced in regional and remote areas.”

Moreover, there are a number of systematic changes that can — and should — be made, including a deeper examination of court practices and increased education, according to Ms Lake, who said that “there is definitely room for change to make the legal system and court processes less punitive and more culturally appropriate”.

“This could look like minimum practice standards for remote courts or perhaps an examination on how best to provide legal advice to people on the day of court. Duty lawyers currently face serious time constraints, which is an issue when you consider that the Australian Centre for Disability Law estimated that 95 per cent of First Nations people charged with criminal offences who appear in court have an intellectual disability, a cognitive impairment, or a mental illness,” she added.

“Australians are becoming more engaged with First Nations’ advocacy and more aware about the trauma of colonial history (and its ongoing repercussions today). Anyone interested in these issues or in supporting First Nations’ access to justice should read broadly and listen deeply because there is a lot to learn and unlearn about the history of this country as well as the difference between the purpose of the criminal justice system and how it functions in practice, and what that may say about Australian society more broadly.”

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