A Dilemma at the Heart of the Criminal Law: The Summary Jurisdiction, Family Violence, and the Over-Incarceration of Aboriginal and Torres Strait Islander Peoples

Tanya Mitchell, 'A Dilemma at the Heart of the Criminal Law: The Summary Jurisdiction, Family Violence, and the Over-Incarceration of Aboriginal and Torres Strait Islander Peoples', The University of Western Australia Law Review, 45:2 (2019) pp.136-165.

28 Pages Posted: 8 Jul 2019 Last revised: 31 Aug 2019

See all articles by Tanya Mitchell

Tanya Mitchell

The University of Sydney Law School

Date Written: July 5, 2019

Abstract

The recent publication of the Australian Law Reform Commission’s Report on the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples and the Report of the Victorian Royal Commission into Family Violence has reinforced the high profile nature of two of the most pressing issues facing the criminal justice system in the twenty-first century: the over-incarceration of Aboriginal and Torres Strait Islander Peoples; and family violence. Much work is being done in practice, at a policy level, and in the academic literature, on these problems, but the impact of change over time to the criminal law has not been subjected to systematic analysis. This paper addresses that gap by investigating the issues of over-incarceration and family violence from a novel perspective. Using a socio-historical analysis, it shows how the increased use of the criminal law in summary form has created a cohort of offenders that did not exist prior to the 1980s. The apprehended domestic violence order and accompanying summary offence of contravening an apprehended violence order have brought the front line of the battle against domestic violence to the summary jurisdiction. This socio-historical analysis reveals a dilemma at the heart of the criminal law: that concerns about victims’ (usually women’s) rights are in tension with concerns about the over-criminalisation of Aboriginal and Torres Strait Islander peoples. This tension is under-examined in the scholarly literature, and yet it is a key reason why the goal of reducing the over-incarceration of Aboriginal and Torres Strait Islander Peoples has met with limited success. In conclusion the paper suggests that our understanding of the over-incarceration of Aboriginal and Torres Strait Islander Peoples might be enhanced by a socio-historical analysis of the offences with which they are being charged.

Keywords: domestic violence, family violence, summary jurisdiction, formalisation, Aboriginal and Torres Strait Islander People, over-incarceration, criminal procedure, criminal law

JEL Classification: K10, K14, K30, K40, K42

Suggested Citation

Mitchell, Tanya, A Dilemma at the Heart of the Criminal Law: The Summary Jurisdiction, Family Violence, and the Over-Incarceration of Aboriginal and Torres Strait Islander Peoples (July 5, 2019). Tanya Mitchell, 'A Dilemma at the Heart of the Criminal Law: The Summary Jurisdiction, Family Violence, and the Over-Incarceration of Aboriginal and Torres Strait Islander Peoples', The University of Western Australia Law Review, 45:2 (2019) pp.136-165., Available at SSRN: https://ssrn.com/abstract=3415281

Tanya Mitchell (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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