Aboriginal people and the law - Legal Information Access Centre

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48 The Law HandbookIntimate proceduresAn “intimate forensic procedure” includes:• examination of the genitals• taking a sample of blood, saliva or pubichair• taking dental impressions (s 3(1)).To carry out such procedures the policeofficer must have either:• the consent of the person from whomthey wish to obtain the sample, or• a court order (ss 7, 22).AdmissibilityA sample that has not been obtained inaccordance with the Act is not admissible asevidence in court (s 82).Intimate procedures and AboriginalpeopleIf the police wish to carry out an intimateprocedure on an Aboriginal person, aninterview friend (a support person chosen bythe person) must be present when theperson is asked for their consent, unlessthey have expressly and voluntarily waivedtheir right to have an interview friendpresent.The police must also inform the personthat the relevant Aboriginal legal servicewill be notified of the proposal to ask forconsent (s 10). An interview friend or legalrepresentative must be present when theprocedure is being carried out on an Aboriginalperson (s 55).Reasons for the provisionsThe special provisions in relation to Aboriginalpeople arise in part from an inquiry bythe NSW Legislative Council Standing Committeeon Law and Justice into the Crimes(Forensic Procedures) Act 2000.The Aboriginal and Torres Strait IslanderCommission and the NSW Aboriginal LandCouncil made submissions to this inquiry,pointing out that bodily samples are used byAboriginal people for spiritual purposes andas a result Aboriginal people may be particularlyreluctant to give such samples.[2.170] BailSection 17(3)(j) of the Bail Act 2013 (NSW)requires the bail authority to take intoaccount any special vulnerability or needsthe accused person has being an Aboriginalor Torres Strait Islander when consideringbail.What Indigenous people should know about the criminal lawThere are no criminal offences that apply specifically toIndigenous people. Some laws that relate to criminalprocedure – in particular, sentencing procedure – dohave special requirements for Indigenous people.In general terms, Indigenous people or their legal representativesshould be aware of a number of aspects ofthe criminal justice system:• All people have a right to silence. No-one has to tellpolice or other authorities their name and addressexcept under specific circumstances, including wherethe police believe on reasonable grounds that theperson has committed or witnessed a crime (seePolice questioning before arrest at [2.150]).• All people have the right to deny police entry to theirhouse unless:– the police have a warrant, or– the police tell the occupant that they wish toenter the house because they suspect a crime isbeing committed inside the premises, or a personwho has committed a crime is inside the premises.• All people have the right to have a legal representativepresent at any interview, whether they havebeen arrested or not.• Aboriginal people are entitled to have their Aboriginalitytaken into account by the police custodymanager when considering whether police bail shouldbe granted or not.• Aboriginal people are entitled to have their Aboriginalitytaken into account by the court when consideringbail.• Aboriginal people must have an interview friend (asupport person chosen by the person) present:– before they can be asked to consent to a forensicprocedure (that is, the taking of body sampleslike hair, saliva or blood), and– during the carrying out of a forensic procedure(see Forensic procedures at [2.160]).• In court, Indigenous people are tried in the samefashion as anyone else. Indigenous people are notentitled to be tried by an Indigenous judge or jury.• In certain areas of NSW, an Aboriginal person whohas entered a plea of guilty is entitled to request thatthey be sentenced by the magistrate in consultationwith the Aboriginal elders of the area (see Circlesentencing at [2.220]).
2 Aboriginal people and the law 49• When sentencing an Aboriginal person, the Court cantake into account the hardship and disadvantagecaused by their background.• In prison, Aboriginal people are not entitled to betreated differently from the other inmates in respectof classification, segregation, leave of absence orparole. There is usually at least one Aboriginal personon the Parole Board, although there is no specificrequirement for this.Women, children and young peopleThere are no provisions of the criminal law that relatespecifically to Aboriginal women or to people under theage of 18. For information regarding children and thecriminal law see chapter 8, Children and young people.Legal assistance[2.180] Aboriginal legalservicesAboriginal legal services were established inthe 1970s largely in response to the overrepresentationof Aboriginal men in thecriminal justice system, in particular due tomisuse of the Summary Offences Act 1988(NSW) (which covers such things as vagrancyand swearing in a public place).In 2006 the six Aboriginal legal services inNSW and ACT were amalgamated to form asingle service, called the Aboriginal LegalService (NSW/ACT) Limited (ALS (NSW/ACT)), which continues to be an Aboriginalcommunity controlled organisation. Thereare 23 offices in NSW and ACT in metropolitanand regional areas.ALS (NSW/ACT) provides legal adviceand court representation for Aboriginal andTorres Strait Islander men, women andchildren in criminal law and children’s careand protection matters.Women's legal servicesAn Aboriginal women’s legal service, WirringaBaiya, was established in 1996 inrecognition of women’s special legal needs,particularly in relation to domestic violence,sexual assault, care and protection, andcustody matters. The Indigenous Women’sLegal Program at Women’s Legal ServicesNSW was established in 1996 to respond toAboriginal women’s civil legal needs acrossNSW (see Indigenous women and the law at[2.240]).See Contact points at [2.580] for a full list of AboriginalLegal Services in NSW.[2.190] Office of theOmbudsmanThe NSW Ombudsman has a designatedAboriginal liaison officer to deal with complaintsfrom Aboriginal people.[2.200] Trial and sentencingAll persons are entitled to be tried inindictable criminal matters by a jury of theirpeers (Criminal Procedure Act 1986 (NSW),s 131). The reference to “peers” does not,however, entitle a person to be tried only bypeople of their own race or religion. Thejury rolls are established by the selection ofnames at random from the electoral rolls(Jury Act 1977 (NSW), s 12). Aboriginalpeople are not entitled to trial by an Aboriginaljudge or magistrate.For details about trial procedure, see chapter 14, Court.
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