Jailing is Failing: Is Australia providing justice to Aboriginal people? By Greg McIntyre SC, Barrister, Michael Kirby Chambers

Introduction

The statistical evidence and opinions of those who are knowledgeable about how Aboriginal people interact with the legal System in Australia and in Western Australia in particular suggest that in most areas of the law they are not well served by the justice system which they come into contact. That applies whether they are interacting with the criminal justice system or the family and civil law systems. 

Access to justice

The Australian Human Rights Commission in its Submission in 2009 to the Senate Legal and Constitutional Affairs Committee said:

Indigenous people are over represented as both offenders and victims in the criminal justice system and present with a range of complex legal needs which impact upon their ability to access justice[1]

The Aboriginal Legal Service of Western Australia in 2013 in a submission to the Productivity Commission Inquiry into Access to Justice Arrangements[2] said:

It is indisputable that WA’s Aboriginal and Torres Strait Islander people do not enjoy the same access to justice in civil and family law matters as the non-Aboriginal population. The key barriers to participation are canvassed below; however, with regard to the actual level of demand in Aboriginal communities throughout the State, ALSWA has observed that there is an urgent need for culturally appropriate legal assistance in the following areas:

• Housing matters
• Discrimination on grounds other than race (for example, disability, sex, age)
• Driver’s licences (applications for extraordinary driver’s licence and applications to remove lifetime disqualifications of drivers licences)
• Guardianship and Administration matters · Issues in relation to fines · Advising respondents in civil matters
• Representation in Courts and Tribunals (most community legal centres will advocate or advise, but very few have lawyers who will appear as counsel in court)
• Mental health matters
• Employment law
• Consumer law issues
• Respondents to applications for Violence Restraining Orders
• Property, financial issues between marital/de facto partners
• Child support issues
• Parentage/paternity disputes.

Unfortunately, ALSWA is prevented from providing legal assistance in almost all of these areas by the restrictions imposed by the Attorney General’s Department (AGD) Service Delivery Directions, as well as severe funding constraints. 

Areas of growing unmet need identified by the ALSWA are:

• Telecommunications issues
• Tenancy issues
• Centrelink matters
• Parole issues

The chief barriers to justice which the ALSWA identified are:

• Geographical isolation
• Education and awareness of legal rights and remedies
• Cultural and language barriers

Inadequate resourcing

Aboriginal and Torres Strait Islander people are more likely than non-Indigenous people to experience multiple, intersecting legal problems. This includes elevated legal need in areas of, among others, crime, government, child protection, tenancy, discrimination, social security, credit and consumer issues and family law and family violence. However, legal services are not equipped to meet soaring demand, due to, among other things, limited resourcing. The need for funding for criminal matters, in addition to family and civil matters (including child protection) is acute. This is heightened in Rural Regional and Remote (‘RRR’) areas where service gaps are particularly severe.[3]

Community-based options

Community-based sentencing options are not equally available to Aboriginal and Torres Strait Islander peoples in RRR areas, despite their potential to address over-imprisonment, including due to minimal resourcing of culturally competent critical support services that underpin these sentences, and inflexibility in some sentencing regimes leading to the exclusion of those with complex needs. Aboriginal and Torres Strait Islander people are less likely to receive community-based sentences than non-Indigenous offenders, and as a result, may be more likely to be imprisoned for the same offence.

Imprisonment rates

The imprisonment rate for Aboriginal people is 12.5 times higher than the rate for non-Aboriginal and Torres Strait Islander people. The proportion of Aboriginal and Torres Strait Islander people in prison continues to rise. Aboriginal women are incarcerated at more than 20 times the rate of non-Aboriginal and Torres Strait Islander women, and the overall rate for Aboriginal women is up 148 per cent since 1991. The Aboriginal and Torres Strait Islander juvenile detention rate is 25 times higher than it is for non-Indigenous young people. Critically high numbers of Aboriginal and Torres Strait Islander people with disability are imprisoned within the adult and juvenile system, although the full extent of the problem is unknown due to a lack of data.

The difficulties faced by Aboriginal and Torres Strait Islander peoples are exacerbated by laws and policies that have a disproportionate and discriminatory effect on Aboriginal and Torres Strait Islander communities or otherwise compound existing disadvantage. Bail laws, including presumptions against bail, have become more restrictive in most states and territories, leading to a nationwide increase in the number of Aboriginal and Torres Strait Islander people held on remand. Additionally, where bail and parole conditions do not take into account cultural and practical considerations, they consequently ‘set up offenders to fail’. Complementary to law reform in this area, access to bail accommodation, bail support programs and post-release accommodation should be expanded to reduce the number of Aboriginal and Torres Strait Islander people on remand and enable successful transitions from prison into the community. Mandatory minimum sentences should be abolished as they undermine judicial discretion and rule of law principles and have a discriminatory impact on Aboriginal and Torres Strait Islander people. Fines have the capacity to result in unjust and disproportionate punishment, including imprisonment. Imprisonment for fine default should be abolished, and alternatives to fines, such as the existing NSW Work and Development Order scheme, should be implemented nationally, in consultation with relevant communities.

Police practices

Findings have been made, and ongoing concerns expressed, that over-policing of Aboriginal and Torres Strait Islander contributes to their high rates of imprisonment. This can include, for example, a disproportionately large police presence, high levels of surveillance, enforcement of public order offences, and insufficient use of diversion or warnings in appropriate situations. Police protocols and guidelines should, where appropriate and community safety is not at risk, prioritise warnings and diversions over arrest. Concerns have also been raised that Aboriginal and Torres Strait Islander women may be subject to problematic police practices in response to family violence. police protocols should therefore ensure that police do not act on outstanding warrants when responding to incidents of violence, or inappropriately issue cross orders against both parties.

Aboriginal women

Aboriginal and Torres Strait Islander women experience barriers to access to justice more acutely than the general population because of trauma, racism, adversity and disadvantage, language barriers, cultural differences and social exclusion. They experience barriers to reporting family violence arising out of intergenerational trauma and experiences of discrimination, racism and poverty.  Specific barriers identified in 2015 in consultations by the Judicial Council on Cultural Diversity[4] included:

• fear that reporting violence will mean that authorities will remove children; geographical barriers, such as distance to travel to court and lack of transport;
• the impact of poor police responses;
• family and community pressure on women seeking to protect themselves and their children;
• the complexity of legal problems experienced by Indigenous women;
• lack of access to legal assistance and advice, especially in regional and remote areas; 
• lack of legal knowledge and understanding of their rights under the law;
• the intimidating process of arriving at court and safety while waiting at court;
• unpredictable waiting times;
• difficulty understanding forms, charges, orders or judgments;
• courtroom dynamics; and
• difficulty understanding court processes, including communication difficulties, triggered and amplified by existing fear and distrust of the court.

The JCCD has recommend the following strategies to respond to these barriers:

• working with Indigenous Community Justice Groups;
• working with local communities to strengthen relationships and understanding of court processes;
• working with the Indigenous Court Liaison Officer (if the court has one);
• undertaking cultural competence training;
• undertaking family violence training and training on trauma-informed practice (where relevant);
• taking measures to help women feel safe in the court environment and when giving evidence;
• allowing participation via video-link where available;
• being aware of when an interpreter may be needed and how to request one; and
• undertaking training on working with interpreters.

Child protection

Aboriginal and Torres Strait Islander children are 9.8 times more likely to be placed in out-of-home care than non-Indigenous children.

Imprisonment of Aboriginal and Torres Strait Islander people perpetuates cycles of disadvantage and intergenerational trauma. The links between parental imprisonment, child protection, youth offending, adult incarceration and recidivism are well established. Children removed by child protection authorities will triple by 2035.

Juvenile justice

Practices and policies in the realm of juvenile justice contribute to the criminalisation of young Aboriginal and Torres Strait Islander people. Initial offences leading to juvenile detention are usually non-violent.

Young people who commit minor offences often receive harsh sentences including jail time, setting them on a path of future crime and imprisonment, when they should be diverted into rehabilitative programs instead, that are run in a culturally competent manner, preferably by Aboriginal and Torres Strait Islander community-controlled organisations.

Young Aboriginal and Torres Strait Islander people receive limited and inconsistent access to diversionary options – for example, studies have found that young Aboriginal and Torres Strait Islander people are less likely to access diversionary options and are more likely to be processed through the courts than young people who are not Aboriginal and Torres Strait Islander.

Solutions

If our society is going to take these matters seriously there are a number things that can be done.  

Commonwealth, state and territory governments should respect the right of self-determination for Aboriginal and Torres Strait Islander people, including through meaningful engagement in policy development and implementation. Community controlled organisations should be supported to play a leading role in improving access to justice for Aboriginal and Torres Strait Islander peoples.

 Commonwealth, state and territory governments should address the funding shortfall for legal assistance organisations, including the ALSWA and Aboriginal Family Legal Service, including through a strong focus on addressing unmet civil legal need and address geographical gaps in legal service coverage for remote areas.

Ongoing cultural competence training, informed and led by Aboriginal and Torres Strait Islander people and organisations, should be provided to lawyers, judicial officers, police, corrections and broader justice system professionals who work with Aboriginal and Torres Strait Islander peoples. Strategies to increase the employment of Aboriginal and Torres Strait Islander peoples across these professions should be adopted. Aboriginal and Torres Strait Islander organisations should be appropriately resourced to engage in this work.

Governments should address underlying disadvantage that precipitates civil legal need and interaction with the criminal justice system for Aboriginal and Torres Strait Islander people, by improving access to housing and crisis accommodation, holistic family support programs, programs for young people at-risk, drug and alcohol rehabilitation services and mental health services.

To address over-imprisonment Commonwealth, state and territory governments should commit to Justice Targets which provide national accountability mechanisms and drive coordinated action on Indigenous incarceration.

Commonwealth, state and territory governments should resource and expand justice reinvestment trials.

Mandatory sentencing regimes which disproportionately incarcerate Aboriginal and Torres Strait Islander people should be abolished in all states and territories.

Imprisonment arising from fine default should be abolished in all jurisdictions. All states and territories should consider the adoption of Work and Development Order schemes, along the lines of the existing New South Wales model.

State and territory governments should reform bail and parole laws which are unnecessarily contributing to high Aboriginal and Torres Strait incarceration rates, including bail and parole conditions with which many Aboriginal and Torres Strait Islander people are unable to comply.

Access to bail and parole accommodation and support programs should be expanded.

Culturally sensitive non-custodial sentencing options, co-designed by Aboriginal and Torres Strait Islander community-controlled organisations and run by them or in partnership with them, should be readily available in all jurisdictions and RRR locations, underpinned by sufficient culturally appropriate, trauma-informed services.

Commonwealth, state and territory governments should develop comprehensive criminal justice policies and procedures that recognise the distinct criminogenic profile of women offenders. Policies and laws should prioritise diversionary options for women, community-based prevention and early intervention support programs that facilitate healing, holistic family support programs, education and training programs, bail reform, specialist family violence courts and culturally safe programs for women in prison and exiting prison. Sentencing considerations could also be reviewed to enable the impact of a primary caregiver’s imprisonment on children and dependents to be considered.

All state and territory governments should legislate to implement custody notification services.

 Police protocols and guidelines should, where appropriate and community safety is not at risk, prioritise warnings and diversion over arrest.

Culturally competent prison rehabilitation, through-care and post-release accommodation support programs should be expanded, including tailored programs for Aboriginal and Torres Strait Islander women.

A National Justice Interpreter Scheme should be implemented, so that professional, trained interpreters are readily available and free at all stages of the criminal and civil justice process to Aboriginal and Torres Strait Islander peoples and other culturally and linguistically diverse groups with insufficient means.

Courts should be supported to provide culturally appropriate support services and to ensure the facilitation of specialist sentencing courts.

Police protocols and guidelines should prioritise the appropriate recognition and provision of support to Aboriginal and Torres Strait Islander women and children who are subject to family violence. Protocols should ensure that police do not act on outstanding warrants when responding to incidents of family violence, or inappropriately issue cross-orders against both parties.

Governments and the broader justice sector should work together to address the intersectional needs of Aboriginal and Torres Strait Islander people experiencing disability by developing informed and culturally competent responses throughout the criminal justice system. This should include: 

• developing strategies to enable better identification of disability;
• enabling better access to disability support services, including in RRR communities, as part of a preventative and early intervention approach, and to rehabilitate those within the criminal justice system;
• co-locating disability support workers with Aboriginal community controlled legal services; and
• addressing concerns regarding existing unfitness to stand trial laws, and the lack of alternative accommodation for those caught by these provisions.

Regarding child protection systems:

• the Aboriginal and Torres Strait Islander Child Placement Principle should continue to inform child protection policy and addressing barriers to its full implementation should be a priority;

• a national target should be set to eliminate the over-representation of Aboriginal and Torres Strait Islander children in out-of-home care should form part of the Closing the Gap framework; and

• a national review of Aboriginal and Torres Strait Islander children in child protection, and associated state and territory laws and practices, should be implemented, as recommended by the Australian Law Reform Commission.

Conclusion

The inadequacies of Australia’s and Western Australia’s legal system on delivering justice to Aboriginal people are many faceted and impact in different ways on men, women and children. There are things which can be done, however, to improve that situation. It requires carefully targeted funding by Commonwealth and State governments and changes to legislation, policies and procedures, which are culturally appropriate and have at their base an engagement with Aboriginal people which respects their vulnerabilities and their entitlement to self-determination.

[1] Inquiry into Access to Justice (2009) | Australian Human Rights Commission

[2] Submission 112 - Aboriginal Legal Service of Western Australia - Access to Justice Arangements - Public inquiry (pc.gov.au)

[3] Law Council of Australia The Justice Project, August 2018, Aboriginal and Torres Strait Islander People (Part 1).pdf (lawcouncil.asn.au)

[4] Aboriginal-Torres-Strait-Islander-Women-FACTSHEET.pdf (jccd.org.au).