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Issues in International Divorce Cases
- from Part II - International Family Law
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- By Rebecca Bailey-Harris, Barrister and Mediator London, United Kingdom
- Edited by Gillian Douglas, Mervyn Murch, Victoria Stephens
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- International and National Perspectives on Child and Family Law
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- Intersentia
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- 12 October 2018
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Summary
INTRODUCTION
Freedom of movement within an area of freedom, security and justice is one of the political pillars of the European Union and underpins its regime of Regulations. But international mobility of individuals and families is by no means confined to the European Union: it is worldwide. Many ‘international’ families have links to more than one country, whether within the EU or without. Against the background of high rates of marriage breakdown, the mobility of individuals and their families has posed considerable challenges for the rules of private international law. Clear jurisdictional rules on access to courts are required and the reciprocal recognition and effective enforcement of orders between countries is of vital importance.
Both EU law and national law within the UK jurisdictions have responded to the challenge. This chapter will address recent developments and current issues in rules on international jurisdiction and the recognition and enforcement of orders in divorce and ancillary financial matters. In addition to issues which have arisen to date, the UK now faces the immense legal challenges posed by the process of exiting the EU. The European Union (Withdrawal) Bill published on 13 July 2017 gives rise to many issues of constitutionality and interpretation, and it will no doubt be subject to close scrutiny and lively debate in both Houses of Parliament. The Bill's implications in the field of divorce and ancillary matters will be addressed in this chapter, albeit that a high degree of speculation is inevitable at the time of writing.
JURISDICTION IN DIVORCE
Developed legal systems require connecting factors as the prerequisite for an individual's access to courts. Subject to provisions enabling prorogation (choice of court), the connecting factors embodied in jurisdictional rules are underpinned by the policy of deterring ‘forum-shopping’, and divorce law is no exception. Neither EU law nor the domestic laws of UK jurisdictions permit prorogation of jurisdiction for divorce. Jurisdictional rules for divorce are based on the principle of a genuine connection between an individual and the country of which the courts are invoked. Rules must strike a balance between the flexibility required by family mobility and the need for legal certainty.
The jurisdiction of a court to entertain a divorce petition is stated in section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.
Contributors
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- By Mitchell Aboulafia, Frederick Adams, Marilyn McCord Adams, Robert M. Adams, Laird Addis, James W. Allard, David Allison, William P. Alston, Karl Ameriks, C. Anthony Anderson, David Leech Anderson, Lanier Anderson, Roger Ariew, David Armstrong, Denis G. Arnold, E. J. Ashworth, Margaret Atherton, Robin Attfield, Bruce Aune, Edward Wilson Averill, Jody Azzouni, Kent Bach, Andrew Bailey, Lynne Rudder Baker, Thomas R. Baldwin, Jon Barwise, George Bealer, William Bechtel, Lawrence C. Becker, Mark A. Bedau, Ernst Behler, José A. Benardete, Ermanno Bencivenga, Jan Berg, Michael Bergmann, Robert L. Bernasconi, Sven Bernecker, Bernard Berofsky, Rod Bertolet, Charles J. Beyer, Christian Beyer, Joseph Bien, Joseph Bien, Peg Birmingham, Ivan Boh, James Bohman, Daniel Bonevac, Laurence BonJour, William J. Bouwsma, Raymond D. Bradley, Myles Brand, Richard B. Brandt, Michael E. Bratman, Stephen E. Braude, Daniel Breazeale, Angela Breitenbach, Jason Bridges, David O. Brink, Gordon G. Brittan, Justin Broackes, Dan W. Brock, Aaron Bronfman, Jeffrey E. Brower, Bartosz Brozek, Anthony Brueckner, Jeffrey Bub, Lara Buchak, Otavio Bueno, Ann E. Bumpus, Robert W. Burch, John Burgess, Arthur W. Burks, Panayot Butchvarov, Robert E. Butts, Marina Bykova, Patrick Byrne, David Carr, Noël Carroll, Edward S. Casey, Victor Caston, Victor Caston, Albert Casullo, Robert L. Causey, Alan K. L. Chan, Ruth Chang, Deen K. Chatterjee, Andrew Chignell, Roderick M. Chisholm, Kelly J. Clark, E. J. Coffman, Robin Collins, Brian P. Copenhaver, John Corcoran, John Cottingham, Roger Crisp, Frederick J. Crosson, Antonio S. Cua, Phillip D. Cummins, Martin Curd, Adam Cureton, Andrew Cutrofello, Stephen Darwall, Paul Sheldon Davies, Wayne A. Davis, Timothy Joseph Day, Claudio de Almeida, Mario De Caro, Mario De Caro, John Deigh, C. F. Delaney, Daniel C. Dennett, Michael R. DePaul, Michael Detlefsen, Daniel Trent Devereux, Philip E. Devine, John M. Dillon, Martin C. Dillon, Robert DiSalle, Mary Domski, Alan Donagan, Paul Draper, Fred Dretske, Mircea Dumitru, Wilhelm Dupré, Gerald Dworkin, John Earman, Ellery Eells, Catherine Z. Elgin, Berent Enç, Ronald P. Endicott, Edward Erwin, John Etchemendy, C. Stephen Evans, Susan L. Feagin, Solomon Feferman, Richard Feldman, Arthur Fine, Maurice A. Finocchiaro, William FitzPatrick, Richard E. Flathman, Gvozden Flego, Richard Foley, Graeme Forbes, Rainer Forst, Malcolm R. Forster, Daniel Fouke, Patrick Francken, Samuel Freeman, Elizabeth Fricker, Miranda Fricker, Michael Friedman, Michael Fuerstein, Richard A. Fumerton, Alan Gabbey, Pieranna Garavaso, Daniel Garber, Jorge L. A. Garcia, Robert K. Garcia, Don Garrett, Philip Gasper, Gerald Gaus, Berys Gaut, Bernard Gert, Roger F. Gibson, Cody Gilmore, Carl Ginet, Alan H. Goldman, Alvin I. Goldman, Alfonso Gömez-Lobo, Lenn E. Goodman, Robert M. Gordon, Stefan Gosepath, Jorge J. E. Gracia, Daniel W. Graham, George A. Graham, Peter J. Graham, Richard E. Grandy, I. Grattan-Guinness, John Greco, Philip T. Grier, Nicholas Griffin, Nicholas Griffin, David A. Griffiths, Paul J. Griffiths, Stephen R. Grimm, Charles L. Griswold, Charles B. Guignon, Pete A. Y. Gunter, Dimitri Gutas, Gary Gutting, Paul Guyer, Kwame Gyekye, Oscar A. Haac, Raul Hakli, Raul Hakli, Michael Hallett, Edward C. Halper, Jean Hampton, R. James Hankinson, K. R. Hanley, Russell Hardin, Robert M. Harnish, William Harper, David Harrah, Kevin Hart, Ali Hasan, William Hasker, John Haugeland, Roger Hausheer, William Heald, Peter Heath, Richard Heck, John F. Heil, Vincent F. Hendricks, Stephen Hetherington, Francis Heylighen, Kathleen Marie Higgins, Risto Hilpinen, Harold T. Hodes, Joshua Hoffman, Alan Holland, Robert L. Holmes, Richard Holton, Brad W. Hooker, Terence E. Horgan, Tamara Horowitz, Paul Horwich, Vittorio Hösle, Paul Hoβfeld, Daniel Howard-Snyder, Frances Howard-Snyder, Anne Hudson, Deal W. Hudson, Carl A. Huffman, David L. Hull, Patricia Huntington, Thomas Hurka, Paul Hurley, Rosalind Hursthouse, Guillermo Hurtado, Ronald E. Hustwit, Sarah Hutton, Jonathan Jenkins Ichikawa, Harry A. Ide, David Ingram, Philip J. Ivanhoe, Alfred L. Ivry, Frank Jackson, Dale Jacquette, Joseph Jedwab, Richard Jeffrey, David Alan Johnson, Edward Johnson, Mark D. Jordan, Richard Joyce, Hwa Yol Jung, Robert Hillary Kane, Tomis Kapitan, Jacquelyn Ann K. Kegley, James A. Keller, Ralph Kennedy, Sergei Khoruzhii, Jaegwon Kim, Yersu Kim, Nathan L. King, Patricia Kitcher, Peter D. Klein, E. D. Klemke, Virginia Klenk, George L. Kline, Christian Klotz, Simo Knuuttila, Joseph J. Kockelmans, Konstantin Kolenda, Sebastian Tomasz Kołodziejczyk, Isaac Kramnick, Richard Kraut, Fred Kroon, Manfred Kuehn, Steven T. Kuhn, Henry E. Kyburg, John Lachs, Jennifer Lackey, Stephen E. Lahey, Andrea Lavazza, Thomas H. Leahey, Joo Heung Lee, Keith Lehrer, Dorothy Leland, Noah M. Lemos, Ernest LePore, Sarah-Jane Leslie, Isaac Levi, Andrew Levine, Alan E. Lewis, Daniel E. Little, Shu-hsien Liu, Shu-hsien Liu, Alan K. L. Chan, Brian Loar, Lawrence B. Lombard, John Longeway, Dominic McIver Lopes, Michael J. Loux, E. J. Lowe, Steven Luper, Eugene C. Luschei, William G. Lycan, David Lyons, David Macarthur, Danielle Macbeth, Scott MacDonald, Jacob L. Mackey, Louis H. Mackey, Penelope Mackie, Edward H. Madden, Penelope Maddy, G. B. Madison, Bernd Magnus, Pekka Mäkelä, Rudolf A. Makkreel, David Manley, William E. Mann (W.E.M.), Vladimir Marchenkov, Peter Markie, Jean-Pierre Marquis, Ausonio Marras, Mike W. Martin, A. P. Martinich, William L. McBride, David McCabe, Storrs McCall, Hugh J. McCann, Robert N. McCauley, John J. McDermott, Sarah McGrath, Ralph McInerny, Daniel J. McKaughan, Thomas McKay, Michael McKinsey, Brian P. McLaughlin, Ernan McMullin, Anthonie Meijers, Jack W. Meiland, William Jason Melanson, Alfred R. Mele, Joseph R. Mendola, Christopher Menzel, Michael J. Meyer, Christian B. Miller, David W. Miller, Peter Millican, Robert N. Minor, Phillip Mitsis, James A. Montmarquet, Michael S. Moore, Tim Moore, Benjamin Morison, Donald R. Morrison, Stephen J. Morse, Paul K. Moser, Alexander P. D. Mourelatos, Ian Mueller, James Bernard Murphy, Mark C. Murphy, Steven Nadler, Jan Narveson, Alan Nelson, Jerome Neu, Samuel Newlands, Kai Nielsen, Ilkka Niiniluoto, Carlos G. Noreña, Calvin G. Normore, David Fate Norton, Nikolaj Nottelmann, Donald Nute, David S. Oderberg, Steve Odin, Michael O’Rourke, Willard G. Oxtoby, Heinz Paetzold, George S. Pappas, Anthony J. Parel, Lydia Patton, R. P. Peerenboom, Francis Jeffry Pelletier, Adriaan T. Peperzak, Derk Pereboom, Jaroslav Peregrin, Glen Pettigrove, Philip Pettit, Edmund L. Pincoffs, Andrew Pinsent, Robert B. Pippin, Alvin Plantinga, Louis P. Pojman, Richard H. Popkin, John F. Post, Carl J. Posy, William J. Prior, Richard Purtill, Michael Quante, Philip L. Quinn, Philip L. Quinn, Elizabeth S. Radcliffe, Diana Raffman, Gerard Raulet, Stephen L. Read, Andrews Reath, Andrew Reisner, Nicholas Rescher, Henry S. Richardson, Robert C. Richardson, Thomas Ricketts, Wayne D. Riggs, Mark Roberts, Robert C. Roberts, Luke Robinson, Alexander Rosenberg, Gary Rosenkranz, Bernice Glatzer Rosenthal, Adina L. Roskies, William L. Rowe, T. M. Rudavsky, Michael Ruse, Bruce Russell, Lilly-Marlene Russow, Dan Ryder, R. M. Sainsbury, Joseph Salerno, Nathan Salmon, Wesley C. Salmon, Constantine Sandis, David H. Sanford, Marco Santambrogio, David Sapire, Ruth A. Saunders, Geoffrey Sayre-McCord, Charles Sayward, James P. Scanlan, Richard Schacht, Tamar Schapiro, Frederick F. Schmitt, Jerome B. Schneewind, Calvin O. Schrag, Alan D. Schrift, George F. Schumm, Jean-Loup Seban, David N. Sedley, Kenneth Seeskin, Krister Segerberg, Charlene Haddock Seigfried, Dennis M. Senchuk, James F. Sennett, William Lad Sessions, Stewart Shapiro, Tommie Shelby, Donald W. Sherburne, Christopher Shields, Roger A. Shiner, Sydney Shoemaker, Robert K. Shope, Kwong-loi Shun, Wilfried Sieg, A. John Simmons, Robert L. Simon, Marcus G. Singer, Georgette Sinkler, Walter Sinnott-Armstrong, Matti T. Sintonen, Lawrence Sklar, Brian Skyrms, Robert C. Sleigh, Michael Anthony Slote, Hans Sluga, Barry Smith, Michael Smith, Robin Smith, Robert Sokolowski, Robert C. Solomon, Marta Soniewicka, Philip Soper, Ernest Sosa, Nicholas Southwood, Paul Vincent Spade, T. L. S. Sprigge, Eric O. Springsted, George J. Stack, Rebecca Stangl, Jason Stanley, Florian Steinberger, Sören Stenlund, Christopher Stephens, James P. Sterba, Josef Stern, Matthias Steup, M. A. Stewart, Leopold Stubenberg, Edith Dudley Sulla, Frederick Suppe, Jere Paul Surber, David George Sussman, Sigrún Svavarsdóttir, Zeno G. Swijtink, Richard Swinburne, Charles C. Taliaferro, Robert B. Talisse, John Tasioulas, Paul Teller, Larry S. Temkin, Mark Textor, H. S. Thayer, Peter Thielke, Alan Thomas, Amie L. Thomasson, Katherine Thomson-Jones, Joshua C. Thurow, Vzalerie Tiberius, Terrence N. Tice, Paul Tidman, Mark C. Timmons, William Tolhurst, James E. Tomberlin, Rosemarie Tong, Lawrence Torcello, Kelly Trogdon, J. D. Trout, Robert E. Tully, Raimo Tuomela, John Turri, Martin M. Tweedale, Thomas Uebel, Jennifer Uleman, James Van Cleve, Harry van der Linden, Peter van Inwagen, Bryan W. Van Norden, René van Woudenberg, Donald Phillip Verene, Samantha Vice, Thomas Vinci, Donald Wayne Viney, Barbara Von Eckardt, Peter B. M. Vranas, Steven J. Wagner, William J. Wainwright, Paul E. Walker, Robert E. Wall, Craig Walton, Douglas Walton, Eric Watkins, Richard A. Watson, Michael V. Wedin, Rudolph H. Weingartner, Paul Weirich, Paul J. Weithman, Carl Wellman, Howard Wettstein, Samuel C. Wheeler, Stephen A. White, Jennifer Whiting, Edward R. Wierenga, Michael Williams, Fred Wilson, W. Kent Wilson, Kenneth P. Winkler, John F. Wippel, Jan Woleński, Allan B. Wolter, Nicholas P. Wolterstorff, Rega Wood, W. Jay Wood, Paul Woodruff, Alison Wylie, Gideon Yaffe, Takashi Yagisawa, Yutaka Yamamoto, Keith E. Yandell, Xiaomei Yang, Dean Zimmerman, Günter Zoller, Catherine Zuckert, Michael Zuckert, Jack A. Zupko (J.A.Z.)
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Aboriginal Youth and the Criminal Justice System
- The Injustice of Justice?
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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- 05 February 2012
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- 13 October 1990
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This book is a 1990 account of the ways in which young Aborigines were at a disadvantage before laws and legislation had been introduced, intended to improve their position. Aboriginal Youth and the Criminal Justice System focuses on South Australia, where detailed statistics are available, in a sophisticated analysis of the exact nature of the discrimination experienced by young Aborigines. Fay Gale, Rebecca Bailey-Harris and Joy Wundersitz examine the criminal justice system in operation; from the initial intervention by a police officer, through the process of screening and assessment to the final outcome - which all too often is a criminal record. The research clearly shows that at every point where discretion was exercised within this system, Aboriginal youths received the harsher option. Thus disadvantage is heaped on disadvantage until young Aboriginals were imprisoned at 23 times the rate of other young Australians. Even for those who escaped detention, participation in the criminal justice system was often such an ordeal that it became a form of punishment in itself. Discretion, though preferable to inflexible rules could operate against a group whose lifestyle and values differed from mainstream society.
List of Appendixes
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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- Aboriginal Youth and the Criminal Justice System
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CHAPTER THREE - Welfare and Justice: Ideal Intentions but Differential Delivery
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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- Aboriginal Youth and the Criminal Justice System
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Summary
During the reforming decades of the 1960s and 1970s a spate of legislation appeared in both the juvenile justice and general welfare fields in South Australia. Underlying the program of legislative reform was the laudable motive of achieving greater equity for all members of the community. It also reflected a commitment to the notion that legislation is an effective tool for engineering social change.
Yet the various legal and welfare initiatives of the period do not appear to have made the system more equitable in practice. In fact, legislative changes have done little to improve the position of young Aborigines before the criminal law in South Australia. Not only has Aboriginal involvement in the juvenile justice system actually increased since the early 1970s, but at each stage of that system, this group continues to be singled out for harsher treatment than other young people. This remains true, even when Aborigines are compared with other highly visible ethnic groups. Quite simply, it seems that the ideals of legislative reform have not been translated into practice for Aboriginal youth. This suggests that legislation may not necessarily be an effective tool for engineering social change. In fact, there is evidence to show that the more attempts made to improve the delivery of justice, the more disadvantaged young Aborigines become.
The real effects of legislative reform undertaken in South Australia during the 1960s and 1970s were for many youths, and Aborigines in particular, quite negative.
CHAPTER EIGHT - Justice or Differential Treatment?
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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The juvenile justice system places its faith in the rehabilitation rather than the punishment of the individual child. In South Australia this trust rests in a process which seeks ‘to secure for the child such care, protection, control, correction or guidance as will best lead to the proper development of his personality and to his development into a responsible and useful member of the community’ (Children's Protection and Young Offenders Act 1979 section 7). But what does our society and its allimportant institution, the criminal justice process, really offer to Aboriginal youth?
Young Aborigines are grossly over-represented in every sector of the juvenile justice system. Not only is their rate of apprehension disproportionately high compared with their relative numbers in the South Australian population, but moreover, at every stage within the system where discretion operates and individual decisions must be taken by the various agents of the law, they are substantially more likely than any other group to receive the harsher of the outcomes available. On a per capita basis, they are significantly more likely to be arrested by police rather than reported; to be referred by Screening Panels to the Children's Court, rather than being given the benefit of diversion to an Aid Panel; and finally, once before the Court, they experience more detention orders than any other ethnic group in the community. This remains true even when Aboriginal youth is compared with other highly visible minority groups such as Asians.
Bibliography
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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Frontmatter
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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Index
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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Introduction
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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Summary
Aboriginal people have no reason to believe in the capacity of our legal systems to provide protection or justice, nor in the willingness or ability of the administrators of justice to act in an even-handed manner. As a result of European occupation of this country, the original owners have not only been dispossessed of their land but have also been mistreated by the very legal systems which were supposed to bring them enlightened forms of justice. Australia's adoption of British legal systems led to the false impression that justice would be administered in an equitable manner to all Australians. Yet the position of Aborigines before the law does not support this belief. In fact it casts doubt on many aspects of the judicial system as it operates in the lives of deprived or disadvantaged persons generally.
In two hundred years we have failed to come to grips with the essential causes of this injustice. As one Australian colony after another was occupied, official speeches full of idealism offered worthless promises to Aboriginal residents. In 1839, for example, Governor Gipps wrote:
As human beings partaking of our common nature — as the Aboriginal possessors of the soil from which the wealth of the country has been principally derived — and as subjects of the Queen, whose authority extends over every part of New Holland — the natives of the colony have an equal right with the people of European origin to the protection and assistance of the law of England (Public notice of Governor Gipps, N.S.W., 21 May 1839).
Appendixes
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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- Aboriginal Youth and the Criminal Justice System
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Appendix 1
The South Australian Young Offenders' File: a description of variables
Three groups of variables were collected. The first involved details relating to each separate charge (up to a maximum of eight charges per appearance). These included the type and nature of the charge, the plea recorded for that charge, the penalty imposed (including discharge without penalty) and, if applicable, the duration of that penalty. The major charge was distinguished from the charge attracting the major penalty, as were the associated pleas, penalties and penalty duration.
Secondly, details regarding the actual ‘mechanics’ of the appearance were noted, such as the date and geographic location of the hearing, the method of apprehension, whether it took place before an Aid Panel or Court, whether legal representation was present, whether the person presiding was a judge or magistrate, and the number of adjournments.
The third set of variables related to the individual. These included information on previous contact with the welfare or justice systems, such as the number of previous Aid Panel or Court appearances, and whether the young person was under the care of the State, was subject to an existing order, or was an absconder. Social background details relating to age, gender, residential address, education level, family structure, current and previous occupations and identity (i.e. whether Aboriginal or non- Aboriginal) were also recorded, as were the occupation, income, marital status and ethnic identity of the parent(s).
CHAPTER ONE - Blacks and the Law
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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Summary
In the international field, the United States has led the way in studies of the disadvantaged legal position of blacks; so much so that a decade ago in 1979, Pope could give his article the title ‘Race and Crime Revisited’. Studies such as those of Axelrad (1952) and Goldman (1963) first highlighted the differential selection of black and white youths for formal Court processing, and numerous researchers since then have provided ample documentation of the over-representation of blacks (and in particular, black males) at every stage of the adult and juvenile criminal justice processes. Nor is there any evidence from recent studies that the situation is improving, despite ‘the revolutionary changes in race relations, brought about by the civil rights movement over two decades ago’ (Chilton and Galvin, 1985: 3). These trends closely parallel those now being observed in Great Britain, where the post-war immigration of Africans and West Indians, coupled with the more recent influx of Pakistanis, Asians and groups from other Commonwealth countries, has now led British researchers to take greater interest in race issues generally, and specifically in the relationship between race and crime.
Yet, despite the wealth of information on the disadvantaged position of blacks before the law which has been available from overseas countries during the past three to four decades, concern in Australia over the plight of the indigenous population has been slow to gather momentum.
CHAPTER FIVE - Police: The Initiators of Justice?
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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- Aboriginal Youth and the Criminal Justice System
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Summary
Police exert tremendous power at the gateway to all criminal justice systems: they determine who enters and how. It is therefore not surprising that the disproportionate rate of apprehension amongst Aborigines is often cited as evidence of police discrimination. Yet in Australia, little empirical research has as yet been conducted on the specific question of racial bias in the exercise of police discretion. Although the issue of poor relations between Aborigines and police has often been raised, no studies have attempted to assess systematically police behaviour at the point of apprehension. Under what circumstances do police apprehend Aborigines? What determines the nature and number of charges laid, and why do they choose to arrest rather than report so many Aborigines?
The lack of research in this area is of major concern, since arguably, the most crucial decision taken in the whole criminal justice system is the decision that an individual should enter it. Once a person is brought within the formal process, the real costs can be considerable, even if the final outcome entails no conviction or sentence. The police take a decision at the point of apprehension which sets in motion a mechanism which may be slow and frustrating, and which may have a considerable impact on an individual's life, even if he or she is subsequently exonerated.
An extreme illustration of the possible cost to the individual of participation in the judicial process is dramatically provided by the current debate surrounding Aboriginal deaths in custody.
CHAPTER TWO - The Ideals of Juvenile Justice
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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Summary
Juvenile justice systems differ widely throughout the Western world, and even within Australia itself. In fact, Australia possesses no less than eight different systems of juvenile justice, with each State and Territory having its own legislation. Differences are not matters merely of procedural or institutional detail, but reflect differing concepts — for instance, the characterisation of a juvenile offence as a crime or a symptom of social dysfunction, or the relationship between punishment and rehabilitation. Yet despite their differences, most modern juvenile justice systems display a common characteristic: a far greater emphasis on rehabilitation of the individual offender than pertains in the criminal justice system as it is applied to adults. One aim of this book is to assess how young Aborigines fare in this system in which the State's intervention is intended to reduce the likelihood of an individual's re-offending. This chapter outlines the ideals of a juvenile justice system, in order to measure against them the realities of outcome for young Aborigines. South Australia provides an ideal location for such a case study since, as has often been observed, this State ‘has long had a reputation as an innovator in its provisions for young offenders’ (Nichols, 1985: 222).
Over many years South Australia has sought to improve justice for juveniles. In doing so it has not merely reformulated the details of legislation, but has also reassessed the entire conceptual framework upon which the operation of the system rests.
CHAPTER SIX - Diversion or Trial: Who Decides?
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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Summary
In criminal justice systems which utilise formal diversionary procedures as the alternative to ordinary trial in Court, the determination of which route a case is to take is of crucial significance to the alleged offender. South Australia has a developed system of diversion, represented by the existence of Children's Aid Panels which, as noted earlier, have operated since 1972. Their objective is to achieve a positive effect on a child's future conduct and so reduce the likelihood of further offending. In South Australia since 1979 Screening Panels have operated as the all-important pre-trial ‘sieve’ in the juvenile justice process, deciding which cases are or are not suitable for diversion. This chapter, which examines how this sieve operates, suggests that Screening Panels do not give Aboriginal youth opportunities equal to those afforded to their non-Aboriginal counterparts to benefit from the system of diversion. This can largely be attributed to the fact that the police decision taken at the first level of the juvenile justice process to arrest rather than report a child exerts an extremely strong influence on the Screening Panel's referral decision.
The right of Screening Panels to consider cases where a young person has been arrested as well as those where a young person has been reported is a legislative change from the earlier Juvenile Courts Act 1971, under which all those arrested were ineligible for diversion to Juvenile Aid Panels and had to appear in the Juvenile Court.
Preface
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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Summary
This book is a study of Aboriginal youth and their involvement with the criminal justice system. The research owes its origins to the concern of Aborigines with the plight of their young people. Aboriginal community leaders asked us as researchers to find out ‘why our kids are always in trouble’. They sought behavioural explanations for the high reported crime rates amongst Aboriginal youth. Another initiative came from Aboriginal women, the mothers and aunts of those so frequently detained.
Our study utilises the expertise derived from more than one discipline. It is an examination of the operation of the criminal process, rather than an analysis of patterns of actual offending behaviour. This was determined by the methodology employed: we utilised official statistics on juvenile offending, which cannot reveal more than the process whereby individuals and groups are selected for formal treatment by the system. Our data are unique in detail and comprehensiveness, enabling a more thorough and far-reaching analysis of the juvenile justice process than has been possible elsewhere.
We set out, without any particular doctrinal or political preconceptions, to examine the real degree of involvement of Aboriginal youths in the criminal justice system. Our methodology enabled us to go further and to seek explanations for the dramatic figures which our research revealed. The findings in this book speak for themselves and carry a message for all those concerned with the delivery of social justice to minority groups.
Contents
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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List of Figures & Tables
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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CHAPTER FOUR - Profile of the Aboriginal Young Offender
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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- Aboriginal Youth and the Criminal Justice System
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Summary
The fact that young Aborigines participate in the juvenile justice system in South Australia in vastly disproportionate numbers and that their overrepresentation varies considerably from one location to another raises important questions. Are they over-represented because they are charged differently from other groups in society? Are their personal, social or locational characteristics so distinct from those of other youths that different treatment may be inevitable? Within the Aboriginal group itself are there regional differences in recorded offending behaviour which may be sufficient to account for the regional differences in treatment?
This chapter demonstrates that Aboriginal young offenders do differ from other young offenders, both in their legal history and their socioeconomic circumstances. These differences in the profiles of the two groups offer a potential explanation for the differential treatment of young Aborigines in the criminal justice process. But why such dramatic differences? How much of this is due to either overt or covert racism operating in the criminal justice process?
The Legal Profile
The legal profile of a young offender has three aspects: the crimes with which he or she is charged, the number of charges laid per appearance and the past criminal records. In all three, Aborigines differ from other youth. They are charged with more serious offences; they have more charges laid against them; and they are more likely to have a history of prior appearances before Aid Panels and the Children's Court than non-Aborigines.
Notes
- Fay Gale, Rebecca Bailey-Harris, Joy Wundersitz
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- Book:
- Aboriginal Youth and the Criminal Justice System
- Published online:
- 05 February 2012
- Print publication:
- 13 October 1990, pp 143-144
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