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 â€˜Bridging the gap, some ethical dilemmasâ€™, 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.
â€œAt 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
â€œConversely, a policy which involved sentencing Aboriginal offenders more leniently than non-Aboriginal offenders merely because of their aboriginality would, in my view, be unjustifiable,â€ 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.
â€œSo, if the over-representation of Aboriginal people in the Â criminal justice system is related to the multifaceted disadvantages which some Aboriginal people experience â€¦ the focus of our attention should not beÂ upon the aboriginality of those offenders, but upon addressing the disadvantages to which they are subject.â€
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 Aristotleâ€™s argument about inequality and justice, that â€œthe worst form of inequality is to try to make unequal things equalâ€.Â
The Chief Justice said: â€œIn 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
â€œBecause 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.Â However, it seems to me to be unnecessary to go that far.â€