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Law Policy Reform Paper – Aboriginality And The Law In Australia

  1. Background

Indigenous citizens constitute 2.8% of Australia’s population,[1] however, they constitute 27% of its prison population.[2] This extreme over-representation in the custodial system belies an ethnographic problem. Aboriginal persons have long suffered from exclusion from the white-western power structure that was imposed on them with the settlement of Australia by Britain in 1788.  By 1987, there was official recognition of the problem that had long manifested and a Royal Commission was initiated  into the specific problem of Aboriginal deaths in custody (Royal Commission into Aboriginal Deaths in Custody – RCIADC).[3] Over the decade that followed, despite the recommendations made to ameliorate the problems contained in the RCIADC, the issue of Aboriginal over-incarceration continued and in the decade 1990-99 a further 115 Aboriginals died in custody.[4] Deaths in custody have continued unabated since the RIADC.[5] While many of these deaths are the result of natural causes the significant over-representation of Indigenous persons in the custodial system demands resolution.

This paper focuses on public law issues that concern Indigenous persons in general, but most specifically women, in relation to the criminal justice system and their high rates of incarceration.

The contention here is that the best way to reduce Aboriginal deaths in custody is to reduce the incidence of incarceration for Indigenous Australians. This paper focuses on public law issues that concern Indigenous persons in general, but most specifically women, in relation to the criminal justice system and their high rates of incarceration. It proposes several potential legal reforms aimed at reducing the incidence of Indigenous incarceration.

  1. Legal Issue

The legal issue raised in this submission is that while the common law principle is that incarceration should be a measure of last resort,[6] Indigenous Australians are substantially over-represented in the criminal justice system. This paper addresses the question of the best way to divert Indigenous Australians from the criminal justice system and prevent the cycle of recidivism for minor offences. It is predicated on the premise that the best way to reduce Aboriginal deaths in custody is to reduce the incarceration rates of Indigenous Australians.

  1. Stakeholders

  • Indigenous Australians

The foremost stakeholder-group invested in the reform of the criminal justice system is the Indigenous community. Since the 1990s, ‘there has been a proliferation of strategies and policies designed to improve the delivery of criminal justice agency services to Indigenous people and to reduce their over-representation in the criminal justice system.’[7] However, these and other measures have largely failed to reduce indigenous incarceration rates.’ Indigenous over-representation in the custodial system has long been recognised as a consequence of Indigenous community’s vulnerability to arrest for lower-order offences.[8] Anecdotally an example of this is often described as the ‘trifecta’ of drunk and disorderly, offensive language and resisting arrest.[9]

  • Indigenous women

Aboriginal women are particularly vulnerable to incarceration for lower-order offences. They represent a subset of the above stakeholder-group and deserve specific mention. Recently, Indigenous female deaths in custody have highlighted exceptionally high female incarceration rates.[10] This is exemplified by the 2014, death in custody of an indigenous female named Ms. Dhu in WA. ‘A Turnbull government inquiry into Indigenous incarceration has found that …Ms Dhu’s death in custody is a prime example of the “tragic consequences” for Aboriginal people imprisoned for minor unpaid fines.’[11] The death of Ms Dhu in custody in WA[12] illustrates the escalating impacts of minor offending when combined with racial stereotypes, assumptions, and discrimination by police.[13] The combination of substantively[14] discriminatory laws and/or poor or over-policing[15] militates against indigenous women escaping a vicious cycle of incarceration.[16]

  • Australian National Community and Commonwealth

The large number of Indigenous persons incarcerated in Australia impacts the community as a whole negatively by:

  • placing a disproportionate, unnecessary burden on the Australian taxpayer who funds the over-represented indigenous population in the custodial system.[17]
  • undermining Australia’s international human rights treaty obligations. For example, the International Covenant on Civil and Political Rights (ICCPR)[18] and the International Convention on the Elimination of all forms of Racial Discrimination (ICERD).[19] This perpetuates a negative image of Australia as a racist nation around the world and in the international legal system. It is also relevant to the question under examination because it is a tenet of Australian municipal law, that it will endeavour to enact legislation in accordance with Australia’s international treaty obligations.
  • reinforcing negative racial stereotypes and discriminatory attitudes in Australia, whether in the law enforcement community or community at large.[20]
  1. Sources

Among others, the following three sources have informed this paper;

4.1. An economic analysis for Aboriginal and Torres Strait Islander offenders: prison vs residential treatment.[21] This report recommends that funding should be redirected from the construction and operation of further correctional system centres, to establishing a network of Indigenous-specific residential rehabilitation and other viable alternative services to break the cycle of incarceration. It makes an estimate of the number of Indigenous people who may benefit from diversion to a residential drug treatment facility.[22

4.2. Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper 84.[23] Per its ‘terms of reference’ the areas this discussion paper covers ‘Laws and legal frameworks including legal institutions and law enforcement (police, courts, legal assistance services and prisons), that contribute to the incarceration rate of [Indigenous] peoples and inform decisions to hold or keep [them] in custody.’[24]

4.3. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).[25] Australia is party to the ICERD under which, inter alia, it undertakes to pursue by ‘all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to ensure that all public authorities and public institutions, national and local [including police and Australian state legislatures], shall act in conformity with this obligation.’[26]

  1. Remedies

There are many potential remedies for the over-incarceration of Indigenous peoples in Australia. Among the many are Legislative reform and diversion from the criminal justice system in states such as WA and the Northern Territory, where imprisonment for minor offences (such as unpaid fines) has particularly negative consequences for Indigenous people especially women.  Diversion[27] from the criminal justice system may include; providing alcohol and drug rehabilitation, and/or mental health care facilities, rather than imprisonment for minor offences, especially for women who have been the victims of domestic violence.

  1. Discussion

“The [WA Fines] legislation[28] [for example] provides for a series of escalating consequences that, when combined with poverty, eventually results in the imprisonment of the fine- defaulter, without any safeguard of judicial oversight.”[29] The cycle of poverty, racism, and incarceration[30] for such minor offences discriminates against indigenous people who already suffer from the injustice of “structural violence.”[31] Indigenous peoples are over-represented “as fine recipients and are less likely than non-indigenous people to pay a fine at first notice (attributed to financial capacity, itinerancy and [poor] literacy) and are consequently susceptible to escalating fine debt and fine enforcement measures.”[32] This injustice is exacerbated by the fact that many offences are fuelled by endemic abuse of alcohol[33] and domestic violence against women in Indigenous communities,[34] and that an estimated 95 per cent of indigenous people charged with criminal offences present with an intellectual disability, cognitive impairment or mental illness.[35]

Diverting Indigenous Australians into the care of agencies or institutions (including the traditional Aboriginal justice system, rehabilitation and social services centres)[36] would have a number of positive consequences for the stakeholders discussed above. These include:

  1. delivering equity and ‘substantive justice’[37] under law in Australia. This would be commensurate with the rule of ‘good’ law[38] rather than ignoring the substantive injustice of the current laws which are enforced equally on a formal basis, but without account for the social circumstances of Indigenous peoples.
  2. improving the standard and quality of life for Indigenous Australians, and assist in reducing racial stereotypes and racism.
  3. reducing the over-representation of Indigenous persons in the prison system and the corollary economic burden on the taxpayer, without providing a positive social or economic return.
  4. addressing a number of, if not all, the root causes of Indigenous offending such as alcoholism and mental health issues by providing care, rather than incarceration.
  5. improving Australia’s compliance (and human rights record) under the terms of its international treaty obligations, including the ICERD and ICCPR, among others.

If these reforms are inappropriately implemented there may be a risk of political backlash from those in the non-indigenous Australian community who may see the reforms as wasteful or creating unequal laws. There may also be a risk that if implemented improperly or in an uncoordinated, way the fundamental issues may not be effectively resolved. However, it is my contention that any such risk is outweighed by the risk of not implementing the above reforms. The result of this may well be the ongoing and escalating problem of Indigenous over-policing, over-incarceration, deaths in custody, and the perpetuation of the cycle of ‘structural violence’ that already exists. This is especially the case for Indigenous women who are especially vulnerable to the cycle of repeated incarceration and poverty.


[1] Australian Bureau of Statistics, Census: Aboriginal and Torres Strait Islander population, 27 June 2017. <http://www.abs.gov.au/ausstats/[email protected]/MediaRealesesByCatalogue/02D50FAA9987D6B7CA25814800087E03?OpenDocument> .

[2] Australian Bureau of Statistics, Aboriginal And Torres Strait Islander Prisoner Characteristics, 30 June 2016. <http://www.abs.gov.au/ausstats/[email protected]/Lookup/by%20Subject/4517.0~2016~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics~5> . See also, Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper 84 (2017), 26.

[3] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).

[4] This was in comparison to 99 deaths in custody in the decade prior to that which led to the Royal commission. See Paul Williams, ‘Deaths in Custody: 10 Years on from the Royal Commission’ (2001) Australian Institute of Criminology, Trends and Issues in Criminal Justice, Paper No 203. <http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi203.pdf> .

[5] Calla Wahlquist, ‘Aboriginal deaths in custody: 25 years on, the vicious cycle remains’, The Guardian Online, 15 April 2016. <https://www.theguardian.com/australia-news/2016/apr/15/Aboriginal-deaths-in-custody-25-years-on-the-vicious-cycle-remains> .

[6] David Brown, David Farrier, Luke McNamara, Alex Steel, Michael Grewcock, Julia Quilter and Melanie Schwartz, Criminal Laws: Materials and commentary on Criminal Laws and Process of New South Wales (Federation Press, 6th ed, 2015) 1298.

[7] Change the Record, Review of the Implementation of RCIADIC (May 2015). <https://changetherecord.org.au/resources/files/Chapter%2001_%20Overview.pdf> .

[8] e.g. public order or unpaid fine offences. Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper 84 (2017), 81.

[9] Ugur Nedim, Over Policing of Indigenous Australians and the Trifecta of Charges, (11 October 2014), <https://www.sydneycriminallawyers.com.au/blog/over-policing-of-indigenous-australians-and-the-trifecta-of-charges/> .

[10] Aboriginal women account for approximately 34% of all female custodial detainees in Australia see Peta MacGillvray and Eileen Baldry, ‘Australian Indigenous Women’s Offending Patterns’ (19 June 2015) The Indigenous Justice Clearing House, <https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/brief019.pdf> .

[11] . Calla Wahlquist, ‘Aboriginal deaths in custody: 25 years on, the vicious cycle remains’, The Guardian Online, 15 April 2016. <https://www.theguardian.com/australia-news/2016/apr/15/Aboriginal-deaths-in-custody-25-years-on-the-vicious-cycle-remains> .

[12] ‘Dhu was jailed on a warrant of commitment for $3,622 in unpaid fines and died 45 hours after being put into the lockup. Her family have campaigned for an end to the practice of sending people to jail for failing to pay fines, and for the introduction of an independent mandatory custody notification system – both recommendations of the royal commission that have been implemented in other states, such as New South Wales, but not WA’. Calla Wahlquist, ‘Aboriginal deaths in custody: 25 years on, the vicious cycle remains’, The Guardian Online, 15 April 2016. <https://www.theguardian.com/australia-news/2016/apr/15/Aboriginal-deaths-in-custody-25-years-on-the-vicious-cycle-remains> .

[13] Brendan Foster, ‘Indigenous prison crisis: Ms Dhu a ‘tragic consequence’ of WA fine laws,’ WA Today, 20 July 2017, <http://www.watoday.com.au/wa-news/indigenous-prison-crisis-ms-dhu-a-tragic-consequence-of-wa-fine-laws-20170720-gxf3ov.html> .

[14] I refer here to the concept of substantive versus procedural justice, see ‘Substantive justice pertains to the need of law itself to be just, whether created through legislature or legal precedent.’ See Thomas A. Francis, Substantive vs. Formal Justice (30 October 2015). <https://thomasafrancis.com/2015/10/30/substantive-justice-vs-formal-justice/> .

[15] Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper 84, 168.

[16] Ugur Nedim, Over Policing of Indigenous Australians and the Trifecta of Charges, (11 October 2014), <https://www.sydneycriminallawyers.com.au/blog/over-policing-of-indigenous-australians-and-the-trifecta-of-charges/> .

[17]Kaitlyn Offer, Aboriginal jail rates a tragedy: Brandis (27 October 2016) Australian Associated Press, ; PWC Report, Indigenous Incarceration: Unlock the Facts, (May 2017). <https://www.pwc.com.au/indigenous-consulting/assets/indigenous-incarceration-may17.pdf> .

[18] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS

171 (entered into force 23 March 1976) arts 2, 7, 9, 10, 14, 24, 26, 50.

[19] International Convention on the Elimination of All Forms of Racial Discrimination,  opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) arts 2, 5.

[20] Creative Spirits, Stereotypes & prejudice of ‘Aboriginal Australia’ (12 August 2017), <https://www.creativespirits.info/aboriginalculture/people/stereotypes-prejudice-of-aboriginal-australia> .

[21] ANCD (NIDAC) research paper 24, An economic analysis for Aboriginal and Torres Strait Islander offenders: prison vs residential treatment (August 2012).

[22] These are Indigenous people who experience problematic drug or alcohol use and who are in prison for non-violent offences.

[23] Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper 84.

[24] Ibid, 4, specific examples include:

  1. the nature of offences resulting in incarceration,
  2. cautioning,

iii. protective custody,

  1. arrest,
  2. remand and bail,
  3. diversion,

vii. sentencing, including mandatory sentencing, and

viii. parole, parole conditions and community reintegration.

[25] International Convention on the Elimination of All Forms of Racial Discrimination,  opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

[26] Ibid, art 2.

[27] For diversionary program meaning see LexisNexis Concise Australian Legal Dictionary (LexisNexis Butterworths, 5th ed, 2015) 196.

[28] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).

[29] Brendan Foster, Indigenous prison crisis: Ms Dhu a ‘tragic consequence’ of WA fine laws, WA Today (20 July 2017). <http://www.watoday.com.au/wa-news/indigenous-prison-crisis-ms-dhu-a-tragic-consequence-of-wa-fine-laws-20170720-gxf3ov.html> .

[30] For recidivism rates in the ATSI prison population see Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper 84 (2017), 93.

[31] Structural violence as defined by Professor Johan Galtung, has the effect of denying people important rights such as economic opportunity, social and political equality, a sense of fulfillment and self-worth and so on, see David P. Barash, Introduction to Peace Studies (Wadsworth Publishing Company, 1991) 8.

[32] Further, ABTSI stakeholders point out the detrimental impact of the fines process on ABTSI people and corollary prison sentences, especially women who are disproportionately represented, particularly in WA and NT. .Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper 84, 108, 111.

[33] Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper 84 (2017), 143-5.

[34] Australian Government – Department of Prime Minister and Cabinet, Aboriginal and Torres Strait Islander Health Performance Framework 2014, Report, <https://www.pmc.gov.au/sites/default/files/publications/indigenous/Health-Performance-Framework-2014/tier-2-determinants-health/216-risky-alcohol-consumption.html> .

[35] Brendan Foster, Indigenous prison crisis: Ms Dhu a ‘tragic consequence’ of WA fine laws, WA Today (20 July 2017). <http://www.watoday.com.au/wa-news/indigenous-prison-crisis-ms-dhu-a-tragic-consequence-of-wa-fine-laws-20170720-gxf3ov.html> .

[36] Stephen Bottomley and Simon Bronitt, Law In Context (Federation Press, 4th ed, 2012) 123, 132 142, 153-5.

[37] Thomas A. Francis, Substantive vs. Formal Justice (30 October 2015). <https://thomasafrancis.com/2015/10/30/substantive-justice-vs-formal-justice/> .

[38] See discussion re Joseph Raz in Stephen Bottomley and Simon Bronitt, Law In Context (Federation Press, 4th ed, 2012) 43-4.

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Stephen Pitt-Walker
Stephen Pitt-Walkerhttps://www.smiknowledge.com/Executive%20Education.php
STEPHEN has more than 25 years professional experience in strategic advisory, management consulting and complex strategic outsourcing acquisition integration management across multiple industry sectors. He has consulted independently since 2009. He is currently the chief executive of Integrated Strategy Solutions (ISS) – a strategy education and advisory firm; Founder of the International Strategy Collegium (ISC) - a ‘Think Tank’ for the interdisciplinary development of strategy – and a group of the same name on Linked In; and is global partner, leading the Strategy Discipline, at the Business Insights Group. Prior to this he was Vice President and regional Financial Services practice lead at Gartner Consulting (Asia-Pacific). Stephen has substantial international business and management experience having lived and worked in East Asia, the UK, Europe and the United States (holding global and multi-geography responsibility in a number of premium brand, multi-national corporations). Stephen is a former military officer, a graduate of Australia’s premier military academies and holds multiple postgraduate degrees and awards for outstanding academic achievement and teaching. He is a graduate (Certified Strategy Practitioner) and Fellow of the Strategic Management Institute (Australia), is a past Fellow of the Strategic Planning Society (London), and is a passionate life-long learner, educator and author. Stephen also has a long standing humanitarian interest (especially in the area of Human Rights under International Humanitarian Law in post conflict zones). He is the Founder and Director of the Global Human Rights, Not-for-Profit Organization, is an active volunteer International Human Rights advocate and International Relations researcher & analyst. His specialised areas of concern are the Middle East & Africa and East Asia.

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