At first glance it seems like a good idea, with it seeming unjust for Aboriginal defendants to appear before an all-White jury. But, why? The assumption must be that Whites are in their hearts racists and will not be impartial to the Aboriginal accused of crimes; that is refuted by the case quoted below of an all-White jury finding an Aboriginal man not guilty of murder of his partner. All all-Aboriginal jury may have decided on a guilty verdict, knowing the culture. For that reason alone, any sort of racial quotas of juries should be dropped quick smart. It will politicise the system and lead to situations seen with the O. J. Simpson trial. Rather, it is fair to have many more indigenous people in the jury pool, if possible, especially for rural and remote Australia. They could be chosen at random like everyone else.
It has been objected that: "The reliance on random jury selection for achieving representative juries disadvantages Indigenous Australians, (the report) says, who are under-represented on the electoral roll and due to their over-representation in the criminal justice system, disproportionately disqualifying them or limiting their eligibility for service." This is a social problem that needs addressing since having an assigned number of indigenous people to a case will come right up against the problem of the shortage of suitable eligible Aborigines to sit on juries in the first place.
"Aboriginal defendants forced to appear before all-white juries are hindered by a criminal justice system that fails to properly represent them, a former Supreme Court justice says, arguing the "legitimacy" of the nation's courts depends on boosting the number of Indigenous jurors.
The comments follow an announcement from the country's peak judicial body that it will further investigate how to increase Aboriginal representation on juries, including whether Indigenous defendants should have the right to be heard by a mixed jury of half First Nations people.
Former Queensland Supreme Court judge Roslyn Atkinson, in delivering the 2024 Selden Society lecture late last month, said the under representation of Aboriginal people on juries "remains a continuing problem, just as the under representation of women was".
"If juries are meant to be members of the community who are peers of the defendant, then it is critical that First Nations people are also fairly represented on juries," she said.
"The legitimacy of our criminal justice system may be said to depend on it."
Ms Atkinson drew distinctions between the inclusion of women on Australian juries and the need to raise the representation of Aboriginal people. She said when gender parity was achieved on juries, despite initial concerns about pay and dress code, "no one pushes back, no one suggests that it led to any unfairness in the conduct or outcome of criminal trials".
"The innovation of allowing and then requiring women to serve on juries raised these two … important questions. The first was the role of women in the criminal justice system and the second was the role of juries as representatives of the community," she said.
"The former considers the rights and responsibilities of women as citizens and the latter concerns the rights of a criminal defendant to a fair trial of his or her peers. These principles apply equally to all marginalised groups in our society."
She drew on her experiences presiding over trials of Indigenous defendants in Queensland at which none of their cultural peers was present on the jury.
"I note, for example, when I heard the trial of an Aboriginal man accused of murdering his partner at Aurukun, that the jury panel in Cairns did not include even one First Nations person, even though a knowledge of the culture, relationships and methods of communicating in that community was essential to understanding the background to the events that occurred and the way in which the witnesses gave their evidence," she said.
Her comments come after the Australian Institute of Judicial Administration held a roundtable to discuss a report titled The Australian Jury in Black & White: Barriers to Indigenous Representation, which strongly recommended that a national inquiry be launched immediately to remedy the chronic under-representation of Indigenous jurors.
The report also said there was a "strong argument" for restructuring Australian jury representation to "affirmatively include First Nations jurors" and put forward three models to do so.
AIJA, in its latest newsletter to members, announced it would employ more researchers to further probe the report and its recommendations.
The report was commissioned following the trial of senior constable Zachary Rolfe who was found not guilty of murdering Kumanjayi Walker by a jury of white Australians.
Eminent land rights barrister Tony McAvoy SC, who was in the NT at the time and wrote the foreword to the report, said the case was an example of a "knot in the Australian justice system which must be untangled".
"That trial was conducted before a jury that did not include a single Aboriginal person. That fact attracted some media attention when the jury was sworn in and a lot more attention when a not-guilty verdict was returned," Mr McAvoy said.
"For my own part, there can be no justification that permits a First Nations person in the Northern Territory to be tried before an all-white jury. First Nations people make up approximately one-third of the Northern Territory population."
Ms Atkinson, in delivering her speech, praised Mr McAvoy's observations and said the findings of the report must lead to substantial change.
"The reliance on random jury selection for achieving representative juries disadvantages Indigenous Australians, (the report) says, who are under-represented on the electoral roll and due to their over-representation in the criminal justice system, disproportionately disqualifying them or limiting their eligibility for service," she said.
"Despite this, there is no publicly available current statistics on Indigenous jurors."