27 - Indigenous Peoples and Settler Criminal Law

Summary

Australian indigenous peoples are among the world’s most incarcerated populations. The nineteenth century origins of this fact lie in Australian legal histories, of the interaction of indigenous peoples and British criminal law introduced in the course of colonisation. This chapter considers first the assertion of criminal jurisdiction in law and statute in the early nineteenth century, paying attention to some significant differences between the colonies. Second, we look at some elements of criminal trial, including the treatment of Aboriginal evidence and the role of interpreters. Third, the chapter examines the importance of the criminal justice system’s putative concern with victimisation and the justice due to victims.Finally we consider some evidence about the system-wide impacts of the assertion of criminal jurisdiction over indigenous peoples, including patterns of prosecution and punishment. Understanding these legal histories makes clear how the legal system’s professed principles of justice and fairness compounded discrimination and disadvantage.