In 2017, the Australian Law Reform Commission (ALRC) undertook an inquiry into the over-representation of Aboriginal and Torres Strait Islander peoples in our prisons, with the objective to develop recommendations for reform of laws and legal frameworks to reduce their disproportionate incarceration. We explore some of the key issues involved, as well as the recommendations made by the ALRC.
Disproportionate incarceration rate
Although Aboriginal and Torres Strait Islanders make up 2% of the national population, they account for 27% of the national prison population. This is a persistent and growing problem, with Aboriginal and Torres Strait Islander incarceration rates increasing by 41% between 2006 and 2016.
Royal Commission into Aboriginal Deaths in Custody (RCIADIC)
In 1991, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that the alarming number of Aboriginal deaths in custody was linked to a gross over-representation of Aboriginals in custody.
The RCIADIC looked at indicators of disadvantage that contributed to this disproportionate representation, which may also help to explain the disproportionate incarceration rate amongst Indigenous peoples. These factors included economic position, health situation, education level, influence of alcohol and drugs, as well as land dispossession.
Key issues and ALRC recommendations
The ALRC Report Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples examines the factors leading to the over-representation of Indigenous peoples in our prisons, and outlines key recommendations and strategies to address the crisis.
- Justice Targets – there should be a coordinated governmental response, with national targets to reduce both the rate of incarceration of Aboriginal and Torres Strait Islander people, and the rate of violence against them.
- Justice reinvestment – reinvesting resources from the criminal justice system to community-led initiatives could help to address the drivers of crime and incarceration amongst Indigenous peoples.
- Repeal Mandatory sentencing – The Government should repeal mandatory sentencing legislation in cases where there is a disproportionate impact on Indigenous peoples.
- Bail – Bail laws should be amended to include provisions that take into consideration any issues that arise due to a person’s Aboriginality and cultural obligations, that may conflict with bail conditions such as curfews.
- Sentencing and Aboriginality – Sentencing legislation should include provisions for the unique factors that can affect Indigenous people, such as experience of the Stolen Generation, loss of culture and displacement, as well as the likelihood of prior convictions.
- Community-based sentences – Community-based sentence regimes should be reformed to make them more accessible and flexible for Aboriginal and Torres Strait Islander offenders.
- Prison programs and parole – The availability of prison programs to address known causes of offending (e.g. poor literacy, drug and alcohol abuse) should be increased amongst Indigenous offenders. This particularly applies to females and offenders serving short sentences, groups which are not sufficiently considered in the current programs.
- Access to justice – The government should establish specialist Aboriginal and Torres Strait Islander sentencing courts, and interpreter services within the criminal justice system where needed, to remove barriers to access within the criminal justice system that exist for Aboriginal and Torres Strait Islanders.
- Aboriginal and Torres Strait Islander Women – Programs delivered to female Indigenous offenders should take into account their particular circumstances which may include family and sexual violence, child removal and intergenerational trauma.
- Imprisonment for fines – Fine default should not result in imprisonment, and options should be developed to address the disproportionate effects of fines on Aboriginal and Torres Strait Islander people.
- Alcohol – Initiatives to reduce the harmful effects of alcohol in Indigenous people should be introduced, due to associated links between alcohol, offending and incarceration.
- Police accountability – The perception of poor police practices needs to be addressed in order to improve relationships between police and Aboriginal and Torres Strait Islander peoples.
Where to from here?
The Law Council of Australia has backed the ALRC report. Law Council President Morry Bailes said the disproportionate numbers of Aboriginal and Torres Strait Islander people in incarceration was a ‘national crisis’ requiring immediate action, and warned that its recommendations should not be ignored.
“The ALRC report must not go the way of the past Royal Commission [into Aboriginal Deaths in Custody] report where most of the recommendations are still gathering dust. The ALRC’s recommendations offer a renewed roadmap to end disproportionate numbers of Aboriginal and Torres Strait Islander people in incarceration”, Mr Bailes said.