Culture versus gender : how the mainstream criminal court system is still getting it wrong


The use of Indigenous sentencing courts and cases of family violence received criticism in ‘The Australian’ for being too lenient in R v Morgan. The criticisms related to the Court of Appeal shortening the sentence originally given through the Koori Courts. This article compares and contrasts the original County Koori Court sentencing remarks with the Supreme Court of Appeals decision to illustrate how judicial reasoning and mainstream criminal courts can, in their attempt to be culturally inclusive, lead to further marginalisation and disadvantage for Aboriginal and Torres Strait Islander women and children. In this sense, the article looks at balancing the rights of the Aboriginal or Torres Strait Islander, often male, offender with the needs of the female victim. The article also explores emerging court models which may be more able to achieve this balance. In this capacity, a culturally appropriate representative model of justice may be more able to serve both victims and perpetrators in the case of family violence. Indeed, portraying Aboriginal and Torres Strait Islander men as disadvantaged and oppressed by the justice system might help to recognise the pervasive structural legacy of colonisation; but it will leave little room for protecting women and children and may enhance patriarchal structures that already burden them in occurrences of family and domestic violence.

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This document has been sourced from the Indigenous Law Bulletin, previously known as the Aboriginal Law Bulletin, database published on Austlii ( AustLII advises that it is not the copyright owner of the source documents published on AustLII and is not able to give permission for reproduction of those source documents (refer copyright policy disclaimer dated October 2010). Queries about copyright should be referred to the publisher - the Indigenous Law Centre and the University of New South Wales.