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Law Council of Australia


Opinion piece: What will it take for governments to recognise Australia's justice gap is a national tragedy?

16 June 2020

Opinion piece by Law Council of Australia President, Pauline Wright – published in The Guardian, Tuesday, 16 June 2020.

Aboriginal and Torres Strait Islander people make up about 3 per cent of the population but 29 per cent of the adult prisoner population.

The current conversation on the rates of Indigenous people incarcerated in our country’s prisons is more than a little frustrating.

It is frustrating because it is not new.

It is frustrating because we have been talking about it for so long.

And it is frustrating because we have been left waiting for governments to act.

Aboriginal and Torres Strait Islander people make up about 3 per cent of the total population in Australia, but they account for 29 per cent of the total adult prisoner population in Australia and a shocking 58 per cent of the juvenile detention population. Those figures alone should be enough to propel decision-makers into decisive action.

Two years ago, the Australian Law Reform Commission’s (ALRC’s) seminal Pathways to Justice report into the incarceration of Aboriginal and Torres Strait Islander peoples was presented to government. It highlighted what we within the justice system have known for a long while: that the link between the intergenerational cycle of poverty and interaction with the criminal justice system is entrenched. Our laws and the way they are enforced have a disproportionate impact on vulnerable members of our community, including Indigenous Australians.

The ALRC was certainly not the first to make this link. There is precedent for this. In 2013, the high court in Bugmy v the Queen found that a background of disadvantage and deprivation, with some factors being specific to Aboriginal and Torres Strait Islander peoples, was an important issue to consider in sentencing.

The recommendations made in the Pathways to Justice report were balanced and realistic, calling for reforms to Australia’s criminal laws – such as bail, parole and mandatory sentencing – and a review of police procedures and practices so that the law is enforced fairly, equally and without discrimination.

And yet, more than two years after ALRC delivered its report, we are still waiting for a comprehensive response by federal, state and territory governments. What will it take for them to recognise this appalling justice gap as a national tragedy?

You only have to look at the bail system and the large number of Aboriginal and Torres Strait Islander people in prison on remand while awaiting trial or sentence to see clear evidence of inequality.

The ALRC found that irregular employment, previous convictions for other low-level offences and a lack of secure accommodation all count against Aboriginal and Torres Strait Islander people seeking bail. Reforms to bail laws to require authorities to consider a person’s Aboriginality when making bail determinations could be simply achieved and would go a long way to reducing the unacceptably disproportionate incarceration rate.

And while up to a third of Indigenous people in prison are on remand awaiting trial or sentence, a large proportion of them do not go on to receive a custodial sentence upon conviction, while others will be sentenced only to time served while on remand. This is particularly true of Indigenous women, who are often held on remand for otherwise low-level offending.

Since 1991, the incarceration rate for Aboriginal women has risen 148 per cent and is increasing more rapidly than any other group. And 80 per cent of this population are mothers.

The imprisonment of a parent is one of the best indicators of a child later entering into the criminal justice system themselves. Removal of a child by the state from parental or close family care is another. Little surprise, then, that Aboriginal and Torres Strait Islander children aged 10 to 17 are 22 times more likely than their non-Indigenous counterparts to be in detention and 15 times more likely to be under community-based supervision. Shockingly, it is not uncommon to find that close to 100 per cent of children in detention in the Northern Territory at any given time are Indigenous.

The other measure that disproportionately harms Indigenous populations is mandatory detention. The Law Council has long called for mandatory sentencing laws to be abolished. They are a blunt, costly, one-size-fits-all approach to justice that increases incarceration and fails to deter crime.

But we should also recognise that the justice system does not begin in the courtroom. It begins in the community with the police. A lack of culturally sensitive police practices contributes to the disproportionate arrest, charge and incarceration rates of Aboriginal and Torres Strait Islander people. It may also undermine police investigations.

Police procedure, particularly the exercise of police discretion, must be reviewed by governments so that the law is applied without discrimination and the disproportionate rate of Aboriginal and Torres Strait Islander young people being charged rather than cautioned is a thing of the past. The same behaviour that is seen in a group of blond-haired, blue-eyed boys from comfortable beachside suburbs and might be forgiven as “larrikinism” is more often seen as criminal if it is observed in a group of Aboriginal boys in a bush town or the city streets.

Police mechanisms for handling complainants also need to be reviewed, so that when an Indigenous person raises issues of misconduct, their complaint is heard and acted on. This may need to be done through an independent body.

The minister for Indigenous Australians, Ken Wyatt, is right when he says the justice problem cannot be solved with law reform alone.

But when you consider how fundamentally disruptive incarceration is to an individual and their family – and when you consider how readily legal remedies could be implemented – surely law reform is an excellent place to start.

Now is the time to engage in a “justice reinvestment” approach. Let us redirect the funds currently spent on incarceration, and instead target prevention and community support, the provision of diversion and rehabilitation programs.

This is urgently needed to reduce the disproportionate number of Aboriginal and Torres Strait Islander people in the justice system.

Our country imprisons Indigenous Australians at a higher rate than any other nation imprisons any other minority group. This is nothing of which any Australian should be proud.

Pauline Wright
President, Law Council of Australia




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