In dealing with the justice system, everyone should be treated equally, without experiencing discrimination or injustice. However, this is not the case for First Nations people in Australia. First Nations people often experience systemic racial discrimination and racism in their dealings with police and the court system. As reported in the August 2024 Missing and Murdered First Nations Women and Children Report, they experience delayed and inefficient police investigations, and victim blaming where they are held responsible for what happens to them. Also, often, complaints of violence made by First Nations women are disregarded and not taken seriously. Police response to reports of missing First Nations women is rather “casual”, when compared to reports by non-Indigenous white people.
An obvious example of the discrimination and injustice experienced by First Nations people in their dealings with police and the justice system, is the recent 2018 New South Wales Court of Criminal Appeal Bowraville decision, confirmed by the High Court – Australia’s highest court – in 2019. The families and communities of the victims have been fighting for justice for over thirty years in relation to the death of their children, culminating in the matter being brought to the High Court, but to no avail; that is, with the perpetrator not being brought to justice, and the families continuing to experience pain, injustice and lack of closure.
The Bowraville decision involved the disappearance and murder of three First Nations children in 1991. As often experienced by First Nations people, the children’s disappearance was followed by inefficient and delayed police investigations, resulting from systemic discrimination and racial injustice. In reporting their children as missing, the families were met with inaction and cynicism by the police. This meant that important evidence was lost. This evidence is likely to have resulted in the person who committed these crimes being found guilty, and hence, bringing justice to the children’s families. Instead, the accused was acquitted, and to date, no one has been held accountable for these murders.
One likely solution that could have remedied the injustice arising from the original police discrimination, was the use of the exceptions to the “double jeopardy” rule. The double jeopardy rule protects a previously acquitted person from being tried more than once in relation to the same offence. According to one exception to this rule, called the fresh and compelling evidence exception, a person who had been acquitted and found not guilty by the Court, can be tried again later for the same crime (that is, retried), if fresh evidence arises after their first acquittal.
However, a number of NSW parliamentary inquiries that considered the meaning of this exception interpreted its words too strictly, to the detriment of the Bowraville families, as well as any similar cases. This interpretation meant that the available evidence in the Bowraville case could not meet the requirements for the exception. The Court of Criminal Appeal adopted a similar interpretation, and therefore did not order a retrial. The High Court agreed with this decision. This means that, despite the Bowraville families seeking justice for thirty years, justice has not been delivered. There will not be a retrial in relation to the three murders, and therefore, the possibility of securing a conviction and the families receiving justice and attaining closure, is now lost.
What is needed then, are reforms to deal with the systemic problems that led to injustice in Bowraville, and more particularly, reforms in relation to the double jeopardy exceptions. Yet we saw failure at these attempts, by the NSW Parliament and NSW Government. Between 2015 and 2019, a number of Bills that suggested amendments to broaden the fresh and compelling evidence exception were not passed by Parliament. It should have amended the double jeopardy exceptions legislation in a way so as to prevent injustice. This was not done.
This was then followed by inaction by the NSW Government: The 2019 Standing Committee on Law and Justice Report recommended that the NSW Government consider an alternative model of reform suggested by the Jumbunna Institute of Indigenous Education and Research (“The Jumbunna model”).
This model recommends a broader interpretation of the fresh and compelling evidence exception. That is, it provides a solution to wrongful acquittals arising from systemic racial discrimination – it would provide a solution to cases similar to Bowraville. Disappointingly however, the NSW Government did not implement the Jumbunna model, nor did they implement any other reforms.
What adds further insult to injury are the recommendations made most recently in the Missing and Murdered First Nations Women and Children Report released in August 2024. The report merely provided theoretical solutions, which have been described as “lip service”, and recommendations that are no more than “window dressing”, and therefore, are insufficient.
The report needed to make recommendations that would make perpetrators of injustice accountable, as per the rationales of the National Plan to End Violence Against Women and Children 2022-2032, and that would address past injustices, including historical injustices resulting from First Nations people’s dealings with the police and the justice system, such as what happened in Bowraville. Sadly though, the recommendations that were made only relate to healing of victims’ families, police programs, and cultural awareness training for police, among other recommendations which – while important – do not serve to remedy cases like Bowraville.
The report needed to go further. It needed to make practical recommendations for change that would address systemic discrimination against First Nations peoples, and therefore would deal with the failures of justice that have occurred. It needed to include reform of the double jeopardy exception, based on the “Jumbunna” model, to deal with situations where wrongful acquittals arise because of systemic discrimination. This reform is based on similar UK laws. These laws successfully resulted in delivering justice by leading to convictions following wrongful acquittals, including in a case that involved institutional racism.
This change is in line with the International Convention on the Elimination of All Forms of Racial Discrimination, implemented in Australia by way of the Racial Discrimination Act 1975 (Cth). According to this, “all human beings are equal before the law and are entitled to equal protection of the law against any discrimination”.
Justice still remains to be delivered. The NSW Government and Parliament need to remedy this sad situation.
