Promoting Aboriginal Women’s Human Rights – Understanding When not to Prosecute Aboriginal Women
-
The University of Western Australia
Australia -
Curtin University Australia
-
Legal Practice Australia
Abstract
Legal assessments required by the law of self-defence cannot be made in the absence of an accurate understanding of the violence a person faced before they used force. This article shows how prosecutors are making errors in their decisions to prosecute Aboriginal women who have killed an abusive partner, due to inaccurate understandings of the violence faced by defendants in these circumstances. We argue this error is a fundamental error of law, not one of fact and discretionary authority. It amounts to prosecutors making decisions to prosecute Aboriginal women (and accept guilty pleas) in the absence of a prima facie case. We argue that such decisions by prosecutors can be challenged via an application for stay of proceedings for abuse of process or a ‘no case’ submission.
Except where otherwise noted, content in this journal is licensed under a Creative Commons Attribution 4.0 International License.
Downloads
Author Biographies
Stella Tarrant is a member of the Law Faculty at the University of Western Australia where she teaches criminal law, evidence and gender and the law. For 30 years she has published widely in the areas of crime and the impact of law on women. Her research focusses on the ‘ways of thinking’ that underpin the law and contribute to how we understand the status of women and gender roles more generally. With co-authors Professor Julia Tolmie and George Giudice her report Transforming Legal Understandings of Intimate Partner Violence won an inaugural Council of Australian Law Deans Research Award in 2020. This research was funded by the Australian National Research Organisation for Women’s Safety (ANROWS), and supported the first legislation incorporating principles of ‘social entrapment’ into evidence law in criminal proceedings. She currently works with Dr Hannah McGlade and Carol Bahemia as an academic expert in the preparation of public interest human rights cases relating to violence against Indigenous women and their use of force in defence.
Associate Professor Hannah McGlade is an Indigenous human rights legal academic whose career has focused on justice for Aboriginal people. She has published on race discrimination law and practice, Aboriginal women and children, family violence and sexual assault and her Ph.D thesis received the Stanner Award for Excellence in Aboriginal research and was published by Aboriginal Studies Press in 2012: 'Our Greatest Challenge, Aboriginal Children and Human Rights'
An experienced tribunal member, Dr. McGlade has been appointed to the Administrative Appeals Tribunal, the State Administrative Tribunal and the Mental Health Tribunal.
In 2016, she was appointed the Senior Indigenous Fellow at the Office of the High Commission on Human Rights in Geneva, and in 2020 as an expert member of the UN Permanent Forum on Indigenous Issues.
Carol Bahemia is an Australian lawyer with more than 40 years’ experience practising in a range of areas, including family violence and child protection, for Indigenous and non-Indigenous clients. She established her own private law practice conducting major commercial litigation and is a former Director of Legal Aid, Western Australia.