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Editors --- "Ngaarra Legal Forum - Conference Statement - Digest" [2002] AUIndigLawRpr 20; (2002) 7(1) Australian Indigenous Law Reporter 107

Inquiries and Reports – Australia

Ngaarra Legal Forum — Conference Statement

Gulkula

23–4 August 2001

The Ngaarra Legal Forum was part of the annual Garma Festival held at Gulkula in northeast Arnhem Land, 23–4 August 2001. The two-day forum developed a conference statement, which is reproduced below. Further recommendations can be found at <www.garma.telstra. com/forums2001.htm>.

Conference Statement

Participants at the Ngaarra Legal Forum thank the Yothu Yindi Foundation, the traditional owners of Gulkula and the clan leaders and members, who shared their law and culture with us, for enriching our understanding of the notion of law itself, the responsibility of the Australian legal system to improve the lives of Indigenous Australians, particularly by reducing police apprehension and detention, and custodial sentences, and the advantage for all Australians in the following proposals for reforming the criminal justice system and for the recognition of Aboriginal Law.

The Forum noted that four key guiding principles were necessary to achieve justice and fairness for all, and an end to the dominance and repression of Aboriginal Law by the Australian Legal System.

The Forum welcomed the announcement by the Chief Minister elect of the NT that the NT Government would repeal mandatory sentencing laws. However, the Forum calls on the NT Government to also repeal the Public Order and Anti-Social Conduct Act, and calls on the WA Government to repeal its mandatory sentencing laws. The Forum resolved that, in the interests of observing the highest standards of justice and human rights expected by the community, full judicial discretion should be restored in both the Northern Territory and Western Australian jurisdictions, and should be the fundamental principle in all other Australian jurisdictions.

Principle 1

Justice and fairness in the Australian legal system depends on the protection of full judicial discretion, the separation of powers, and other long valued mechanisms of ensuring justice, from the vagaries of the political system. Resort to mandatory sentencing and zero tolerance policing are political policies of the day that undermine the principles of law and should be resisted by legislatures in the interests of principles of justice and compliance with human rights standards.

The Forum acknowledged that the Indigenous and Australian systems of law have been parallel and co-existing since white settlement. The Forum calls on all Australian Governments to participate in the establishment of a national framework leading to community consultation on the range of developments since the Australian Law Reform Commission 1986 Report on the Recognition of Aboriginal Customary Law, and legislation and judicial decisions recognising Aboriginal Law.

Principle 2

Where legal pluralism enables justice and fairness then the recognition of customary law should be legislated to ensure that all Australians obtain the benefit of a combined system of laws that works to the benefit of Indigenous and non-Indigenous Australians alike.

The Forum established a Committee to work with Bob McMullan to look at ways in which Australian and Indigenous law can work together responding in different circumstances in different parts of the country.

The Forum discussed the wide range of Indigenous community initiatives expressing the principle of self-determination and noted their success in diverting Indigenous people away from the criminal justice system and into community-based justice programs. The Forum resolved that all participants in the Australian system of law and the community should be educated as to the potential for community justice programs working in collaboration with the judiciary, the police and the correctional systems, to provide better outcomes for both offenders, victims and the community.

Principle 3

A fundamental standard in International law is the right of all peoples to self determination whereby they make their own decisions as to political, cultural, economic, social and other matters. Aboriginal communities should be empowered to apply the principle of self-determination at all stages of the criminal justice system and juvenile justice system, and in all other matters of law so that peace, order and good government can operate in all communities.

The Forum calls on those who work in the Australian legal system to provide greater flexibility in the administration of law to ensure that Aboriginal people are treated justly and fairly, and to reduce arrest and imprisonment rates.

Principle 4

Flexibility and imaginative responses in the administration of law would better serve the community than adherence to traditional methods applied by the judiciary, the police and the correctional system. Reform and development of our system of law should aim to reduce contact of offenders with the criminal justice system and to reduce recidivism among offenders. The Royal Commission into Aboriginal Deaths in Custody recommended imprisonment as a last resort. Initiatives in the legal system that aim to divert offenders from custody must be encouraged and established widely.

More detailed recommendations emerged from the workshops held at the Forum to enable the widest possible discussion and input of the participants and we draw the attention of Australian governments to these recommendations and urge their implementation. ?