It’s been thirty years since the Royal Commission into Aboriginal Deaths in Custody brought national attention to the disproportionate impact of the criminal justice process on Aboriginal and Torres Strait Islander people. The shocking rates of incarceration three decades later reflect the ongoing disadvantage caused by the legacies of dispossession, discriminatory government policies and the Stolen Generations. While Aboriginal and Torres Strait Islander people represent only 2 per cent of the population, they account for 27 per cent of those imprisoned. The rates of incarceration are even higher among Aboriginal and Torres Strait Islander women, who make up 34 per cent of all women incarcerated, and in the Northern Territory alone, Aboriginal children and young people comprise 94 per cent of all their cohort incarcerated (at 9).
This state of affairs has been characterised by Commonwealth Attorney-General George Brandis as a ‘national tragedy’ warranting law reform. In October 2016, when announcing the inquiry Brandis and the Minister for Indigenous Affairs, Nigel Scullion noted it has been 25 years since the final report of the Royal Commission into Aboriginal Deaths in Custody, but over-representation of Indigenous people in prisons had actually increased from 14 per cent to 27 per cent during that time. In February 2017 he issued the final terms of reference for an Australian Law Reform Commission inquiry focussing on the law, frameworks, institutions and other factors leading to the over-representation of Aboriginal and Torres Strait Islander people in prisons.
Opportunities for law reform
The ALRC’s discussion paper canvassed many possible areas of reform. Kingsford Legal Centre has a long history of working with our local Indigenous community and advocating for reform where laws disproportionately impact Aboriginal and Torres Strait Islander communities or do not recognise harms experienced by those communities. Kingsford Legal Centre was the first legal service to bring a case against the State of NSW for a member of the Stolen Generation, Joy Williams. The Centre has continued to advocate on those issues over the past 30 years.
Based on our client experiences, here we consider key areas where law reform is needed to address Indigenous incarceration rates. These are areas where we think change could have an immediate and positive impact on Aboriginal and Torres Strait Islander people and their interaction with the justice system.
Addressing over-incarceration through a human rights framework
It is vital that an approach which empowers Aboriginal and Torres Strait Islander people to know and enforce their rights is taken to address over-incarceration, its causes and impacts. A human rights approach would involve measures to empower Aboriginal and Torres Strait Islander people to learn about, promote and protect their rights, and to give Aboriginal and Torres Strait Islander people access to effective processes if these rights are breached. It can also include understandings of the ‘right to self-determination’ which would put Aboriginal people at the centre for devising responses to the issue.
Aboriginal and Torres Strait Islander peoples have greater difficulty accessing their rights than the general population. They experience lower standards of living, health, and political participation and lack rights to self-determination, access to land, adequate housing and education, many of which are underlying causes of offending. Enshrining human rights frameworks will partly address this systemic disadvantage by providing clear benchmarks and access to effective remedies. Initial steps should include the introduction of a national Human Rights Act. A national Human Rights Act is something which Kingsford Legal Centre has been advocating for over the last 20 years. It’s something which numerous United Nations treaty bodies have also recommended as urgently needed within Australia. Another step should include a commitment to develop and implement a national action plan to achieve the ends of the UN Declaration of the Rights of Indigenous Peoples (UN DRIP). The national plan should be developed in consultation with the Indigenous community, and should prioritise self-determination, and increasing Aboriginal and Torres Strait Islander participation at all levels of government.
The disadvantage experienced by Aboriginal and Torres Strait Islander people in the criminal justice system is also compounded by a lack of culturally sensitive services, and a lack of recognition of, and respect for, the right of self-determination. In order to address over-representation, governments must involve Aboriginal and Torres Strait Islander people and their representative organisations in policy development and implementation through genuine consultation processes. The Uluru Statement and the Redfern Statement are a good start for involving Aboriginal and Torres Strait Islander people in policy development.
Mandatory sentencing removes judicial discretion from the sentencing process by requiring Magistrates and Judges to impose minimum sentences for certain crimes. Mandatory sentencing disproportionately impacts Aboriginal and Torres Strait Islander people, as offences targeted by mandatory sentencing laws are often committed by people from a low socio-economic background, and in particular Aboriginal and Torres Strait Islander people. The Australian Bureau of Statistics reports that Aboriginal and Torres Strait Islander people are most commonly charged with acts intended to cause injury and unlawful entry with intent. These offences attract mandatory sentences in many States and Territories. For example, in Western Australia, which has the highest Indigenous incarceration rate in Australia, there is a ‘three-strike’ scheme for burglary offences, with a mandatory sentence applying after the third strike (s 401(4)). However, in practice, juveniles are being charged with three burglary offences within the one incident, leading to mandatory sentencing and accompanying high incarceration rates of Indigenous young people. Notably, white-collar crimes such as fraud tend not to attract mandatory sentences and are not frequently committed by Indigenous Australians.
As a result, mandatory sentencing indirectly discriminates against Aboriginal and Torres Strait Islander people and has been criticised by the UN Committee on the Elimination of all Forms of Racial Discrimination. In particular, the impact of mandatory sentencing schemes on Aboriginal and Torres Strait Islander people breaches Article 5(a) of the Convention for the Elimination of all Forms of Racial Discrimination which mandates ‘the right to equal treatment before tribunals and all other organs administering justice.’ In 2010, the UN Committee on the Elimination of all Forms of Racial Discrimination specifically called for the abrogation of Western Australia’s mandatory sentencing scheme for the impact it had on Indigenous Australians. Mandatory sentencing also raises concerns under Article 2 of the ICCPR, which prohibits discrimination on the basis of race, Article 9, which prohibits arbitrary arrest and detention, and Article 14, the right to a fair trial.
At the recent review of Australia by the Human Rights Committee, Australia was criticised for its use of mandatory sentencing and imprisonment for fine defaults. The Committee recommended that Australia:
take robust measures to address the overrepresentation of indigenous Australians in prisons, …by identifying and revising regulations and policies leading to their high rates of incarceration, including the mandatory sentencing laws and the imprisonment for fine default, and by enhancing the use of non-custodial measures and diverting programmes.
Unpaid fines are another major reason for the over-incarceration of Aboriginal and Torres Strait Islander people. In Western Australia, between 2006 and 2015, an average of 803 people each year were put in gaol for not paying fines (at ii). This disproportionately impacts on Aboriginal and Torres Strait Islander people as 64 per cent were Aboriginal and Torres Strait Islander women and 38 per cent were Aboriginal and Torres Strait Islander men (at v). Incarcerating women has significant consequences for family life, including the increased risk of children being removed from their families and placed in out of home care.
The majority of people gaoled for not paying their fines are gaoled for minor offences, with 54 per cent gaoled for traffic offences (at v). Aboriginal and Torres Strait Islander people are also more likely to face licence related fines due to the barriers in gaining a driver’s licence including difficulty getting identification documents (such as birth certificates) which are essential to get a licence. The costs associated with the graduated licensing system and lack of access to a car and a supervising driver all make it very difficult to get a license.
Work Development Orders (WDO) in NSW are a policy initiative that should be adopted Australia-wide as a means to ‘work off’ fines. A WDO is made by Revenue NSW for people who have a disability, are homeless, are experiencing acute economic hardship, or have a serious addiction so that they can ‘pay’ their fine debt through unpaid work with an approved organisation or by undertaking courses or treatment. KLC believes that if WDO programs were rolled out nationally, it would directly reduce the incarceration of highly vulnerable Aboriginal and Torres Strait Islander peoples by offering a non-financial method of repaying fines, whilst also incentivising participation in educational and counselling services.
Indefinite detention when unfit to stand trial
Prison often becomes the destination for Aboriginal and Torres Strait Islander people with a cognitive impairment who come into contact with the law. Laws in Western Australia, Northern Territory, Queensland and Tasmania all provide for indefinite detention of people with cognitive disabilities. Whilst in prison, it is difficult to provide the appropriate services and support. Interventions mistakenly focus on offending behaviour without targeting complex social disadvantage and disability. Policy innovations should be angled to provide Aboriginal and Torres Strait Islander people with more accessible support and protections that are community-based, culturally appropriate, diversionary in nature, and ultimately enable self-determination. Indefinite detention of people with cognitive disabilities is in breach of article 9(3) of the ICCPR and article 14(1)(b) of the Convention on the Rights of Persons with Disabilities. This is something which Kingsford Legal Centre as a leader of the NGO delegation advocated about at the recent review of Australia by the United Nations Human Rights Committee in Geneva.
Access to justice
Sufficient, stable and ongoing funding for Aboriginal legal assistance services and interpreter services is needed to ensure Aboriginal and Torres Strait Islander people coming into contact with the justice system can access appropriate support.
The ALRC Discussion Paper highlights four categories of legal assistance services that provide for Aboriginal and Torres Strait Islander communities including: Legal Aid Commissions, Community Legal Centres, Indigenous Legal Assistance providers; and the Family Violence Prevention Legal Services (at 203).
The amount of funding provided to Aboriginal and Torres Strait Islander legal services has been declining since 2013 despite the fact that the cost of providing services has increased and that there is high and rising demand. Notwithstanding additional funding allocated for the next 3 years, after 2020, Aboriginal and Torres Strait Islander Legal Services will be subject to cuts in funding. Given that Aboriginal and Torres Strait Islander people already experience a socio-economic disadvantage at all levels of Australia’s justice system, a reduction in the accessibility to legal services will have a detrimental impact on the incarceration rates for Aboriginal and Torres Strait Islander people.
While Kingsford Legal Centre welcomes the Inquiry, we note that many other inquiries and resulting recommendations on this issue have not been implemented by successive Commonwealth, state and territory governments. For example, many of the recommendations of the Royal Commission into Aboriginal Deaths in Custody remain unimplemented. We hope that the outcomes of this inquiry will have a significant positive impact in reducing Indigenous incarceration rates, and the interaction of Aboriginal and Torres Strait Islander people with the criminal justice system.
Suggested citation: Maria Nawaz and Anna Cody ‘Indigenous People in Gaol: What Needs to Change’ on AUSPUBLAW (11 December 2017) <https://auspublaw.org/2017/12/indigenous-people-in-gaol/>