Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples

Redfern Legal Centre welcomes the release of the Final Report of the Australian Law Reform Commission (ALRC) Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, tabled in Parliament on Wednesday 28 March 2018.

Statistically, Australia sends more Indigenous people to prison than to university. The juvenile detention rate is 24 times the rate for non-Indigenous youth, while 34% of the female prison population is comprised of Aboriginal and Torres Strait Islander women. And there is evidence that the problem is worsening: the rate of Indigenous adult incarceration overall increased by 41% between 2006 and 2016.

The ALRC Report contains 35 recommendations for reforms to laws and legal frameworks that contribute to these disproportionate incarceration rates and inform decisions to hold or keep Aboriginal and Torres Strait Islander people in custody. They include:

  • developing national criminal justice targets to reduce the over-imprisonment of Indigenous peoples
  • the creation of a national and independent justice reinvestment body and the initiation of justice reinvestment trials in partnership with communities
  • establishing a national inquiry into child protection laws and processes affecting Indigenous children
  • the repeal of provisions in fine enforcement legislation which provide for imprisonment as an alternative to, or consequence of, unpaid fines, as well as the review of statutory provisions that criminalise offensive language
  • reviewing police practices to ensure that the law is enforced equally and without discrimination towards Aboriginal and Torres Strait Islander peoples, including a review of police complaints handling mechanisms
  • reforms to bail laws, including the imposition of a requirement for bail authorities to consider issues arising due to a person's Aboriginality, culturally appropriate bail support programs and diversion options
  • reform of legislation governing sentencing, so that unique systemic and background factors affecting Aboriginal and Torres Strait Islander offenders are taken into account by courts
  • the implementation of community-based sentencing options for Aboriginal and Torres Strait Islander offenders based on the Victorian Community Correction Order regime
  • the repeal of statutorily imposed mandatory or presumptive terms of imprisonment
  • the development of prison programs that address offending behaviours and prepare people for release in consultation with Aboriginal and Torres Strait Islander organisations
  • improved access to justice through increased interpreter services and specialist sentencing courts
  • the introduction of culturally appropriate programs and services for female Aboriginal and Torres Strait Islander offenders for delivery prior to, during and post-incarceration, and
  • community-led initiatives to reduce the effects of alcohol in Aboriginal and Torres Strait Islander communities.

Redfern Legal Centre's submission to the Inquiry is cited numerous times throughout the ALRC Report, in particular, in relation to Offensive Language and Police Accountability.

Offensive Language

Recommendation 12-4 calls for a review of the effect on Aboriginal and Torres Strait Islander peoples of statutory provisions that criminalise offensive language, with a view to repealing the provisions or narrowing their application so that they only apply to language that is abusive or threatening. 

Redfern Legal Centre (RLC) supports the abolition of the offence of offensive language. Aboriginal and Torres Strait Islander people are overrepresented in New South Wales as recipients of Criminal Infringement Notices (CINs) for offensive language. In 2008, 11% of CINs for offensive language were issued to Aboriginal and Torres Strait Islander people, and there is evidence that this figure has continued to rise.

Police Accountability

Recommendation 14-1 calls for the review of police practices and procedures - particularly the exercise of police discretion - so that the law is enforced fairly, equally and without discrimination with respect to Aboriginal and Torres Strait Islander peoples.

RLC calls for meaningful action to ensure the appropriate use of police discretion in exercising police powers as a strategy to support the diversion of Aboriginal and Torres Strait Islander people from the criminal justice system. In RLC's experience, police powers of arrest are routinely used against Aboriginal and Torres Strait Islander people as a means of first resort, rather than one of the range of alternatives available to police (such as a Court Attendance Notice, warning or caution).

Recommendation 14-2 calls for a review of police complaint handling mechanisms to ensure greater practical independence, accountability and transparency of investigations, particularly addressing the perception by Aboriginal and Torres Strait Islander people that their complaints are not taken seriously and that police misconduct is not addressed.

RLC supports this recommendation. Where our clients have experienced police misconduct, many decide not to pursue a complaint due to fear of reprisals or because of a lack of faith in the police to independently investigate their complaint. It is critical that investigation of police misconduct and the oversight of police complaints is conducted independently of police, and that police are held accountable for any misuse of their powers.

Download

Pathways to Justice-An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples​. Final Report. (ALRC Report 133, 28 March 2018)

Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Summary 133, 28 March 2018).

See also

ALRC Inquiry into the Incarceration Rates of Aboriginal and Torres Strait Islander Peoples. (RLC Submission, 12 September 2017).

Open letter from the NSW Legal Sector (CLCNSW)