find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Property lawyer - Melbourne
Category: Property Law | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Impressive client list, national firm · Well-led and high-performing team
View details
Senior family lawyer - Melbourne
Category: Family Law | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Outstanding national firm · High-calibre family law team
View details
Should judges amend Aboriginal disadvantage?

Should judges amend Aboriginal disadvantage?

The WA Chief Justice has raised the ethical dilemma of whether judges should be required to attempt to amend the disadvantages suffered by Aboriginal people in the justice system.

The Chief Justice of Western Australia, Wayne Martin, has raised the ethical dilemma of whether judges should be encouraged, and required, to attempt to amend the disadvantages suffered by Aboriginal people in the justice system.

Speaking at an ethics lecture at Curtin University last week in a speech entitled ‘Bridging the gap, some ethical dilemmas’, the judge asked whether a system that operates to the disadvantage of a group within our society can fairly be described as a just system.

“At one level it is possible to respond to the problem by asserting that the justice system does not discriminate against Aboriginal people per se, but applies equally to all who have prior criminal records, a history of substance abuse, poor prospects of rehabilitation and so on. But that response seems to me to be facile.Â

“Conversely, a policy which involved sentencing Aboriginal offenders more leniently than non-Aboriginal offenders merely because of their aboriginality would, in my view, be unjustifiable,” Chief Justice Martin said.

He said this would bring the law into disrepute, not least because it could be interpreted as giving a lesser value to the suffering of the predominantly Aboriginal victims of Aboriginal offenders.

The judge argued that the best way of protecting the community from crime is by addressing the underlying causes of offending behaviour. He said this holds true whether or not the offender is Aboriginal.

“So, if the over-representation of Aboriginal people in the  criminal justice system is related to the multifaceted disadvantages which some Aboriginal people experience … the focus of our attention should not be upon the aboriginality of those offenders, but upon addressing the disadvantages to which they are subject.”

He said this should include improving health and living conditions, educational levels and participation in employment, which he argued would also have the effect of reducing the systemic disadvantage which Aboriginal people face within the criminal justice system.

The judge raised Aristotle’s argument about inequality and justice, that “the worst form of inequality is to try to make unequal things equal”.Â

The Chief Justice said: “In the justice system, this concept is often expressed by observing that treating unlike cases alike is as great an injustice as treating like cases differently.Â

“Because the dispossession and discriminatory treatment of Aboriginal people has resulted in the multifaceted disadvantages which I have identified (and some others), it could be argued that non-Aboriginal Australians have a moral and ethical obligation to treat Aboriginal people preferentially as a means of redressing the wrongs of the past. However, it seems to me to be unnecessary to go that far.”

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Should judges amend Aboriginal disadvantage?
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Warning
Aug 23 2017
NT Law Society sounds alarm on mandatory sentencing
The Law Society Northern Territory has issued a warning over mandatory sentencing, saying it hasn’...
Unite
Aug 22 2017
Professionals unite in support of marriage equality
The presidents of representative bodies for solicitors, barristers and doctors in NSW have come toge...
Aug 21 2017
Is your firm on the right track for gig economy gains?
Promoted by Crowd & Co. The way we do business, where we work, how we engage with workers, ev...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...