07.07.2020
The Government is currently considering justice targets as part of a refresh of closing the gap.[1] In this context, last week Pauline Wright, President of the Law Council of Australia stated
Governments must commit to the most ambitious justice targets possible, and to implementing the recommendations of the ALRC seminal Pathways to Justice report, which sets out the framework for how to achieve change.
In March 2018, the Australian Law Reform Commission report, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, was tabled in parliament. On the release of the report His Honour Judge Matthew Myers AM, Commissioner in charge of the Inquiry, said that while the problems leading to the over-representation of Aboriginal and Torres Strait Islander peoples in prisons are complex, they can be solved
Law reform is an important part of that solution. Reduced incarceration, and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system, will improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples, and lead to a safer society for all.[2]
Given the renewed focus on addressing the over-incarceration Aboriginal and Torres Strait Islander people, it is timely to consider the nature of the problems in detail and the solutions the ALRC identified.
The statistics
Aboriginal and Torres Strait Islander peoples are the most incarcerated population on earth.[3] A December 2017 report by the ALRC found that while Aboriginal and Torres Strait Islander adults make up around 2% of the national population they constitute 27% of the national prison population.[4] Aboriginal and Torres Strait Islander people are over-represented in our prisons by a factor of 12.5.[5] That is, an Aboriginal and Torres Strait Islander person is 12.5 times more likely to be in prison than a non-indigenous Australian. The over-representation of Aboriginal and Torres Strait Islander people in our prisons is growing. In the decade to 2016, the over-representation grew from a factor of 11 to 12.5, while over the same period the number of Aboriginal and Torres Strait Islander persons in prison grew by 41%.[6] Aboriginal and Torres Strait Islander women are most significantly over-represented in our prisons by a factor of 21.2.[7]
Can these statistics be explained simply by the fact that Aboriginal and Torres Strait Islander Australians commit more crime?
No. Over-representation increases with the stages of the criminal justice system. In 2016, Aboriginal and Torres Strait Islander people were seven times more likely than non-Indigenous people to be charged with a criminal offence and appear before the courts; 11 times more likely to be held in prison on remand awaiting trial or sentence; and 12.5 times more likely to receive a sentence of imprisonment.[8] This means that even if we adjust for the increased likelihood of an Aboriginal and Torres Strait Islander person being charged with an offence, an Aboriginal and Torres Strait Islander person is much more likely to end up in prison than a non-Indigenous person – the criminal justice system itself is disproportionately jailing Aboriginal and Torres Strait Islander people. We also know that the disparity in likelihood in being charged with a criminal offence is not simply about crimes being committed. We know that Indigenous people are more likely to come to the attention of police than non-Indigenous Australians.[9] In addition, Aboriginal and Torres Strait Islander people are less likely to be given a caution and are more likely to be charged than non-Indigenous Australians.[10]
Are Aboriginal and Torres Strait Islander people more likely to go to prison because they commit more serious and violent crimes?
No. A detailed breakdown of the type of offence charged is provided by the ALRC, in the Pathways to Justice Report.[11] That report shows that such a simplistic assessment is not true. Aboriginal and Torres Strait Islander peoples are less likely to be charged with serious offences such as illicit drug offences and sexual assault and related offences than non-Indigenous peoples.[12] While a high percentage of Aboriginal and Torres Strait Islander people are charged with offences within the category of ‘acts intended to cause injury’; 35% of these charges relate to ‘serious assaults not causing injury’. That is, in 35% of cases there was no bodily injury involved. [13]
Does Aboriginal and Torres Strait Islander status impact on sentencing?
Yes. An Aboriginal and Torres Strait Islander person is much more likely to receive a sentence of imprisonment and much less likely to receive a community based sentence or fine than a non-Indigenous person.[14] Aboriginal and Torres Strait Islander persons are significantly over-represented in receiving short sentences of imprisonment, in part due to the unavailability or unsuitability of community based alternatives.[15] Short sentences of imprisonment are not only ineffective in reducing offending but are particularly damaging for Aboriginal and Torres Strait Islander offenders. Short terms of imprisonment:
- expose minor offenders to more serious offenders in prison;
- do not serve to deter offenders;
- have significant negative impacts on the offender’s family, employment, housing and income; and
- potentially increase the likelihood of recidivism through stigmatisation and the flow on effects of having served time in prison.[16]
The imposition of a short term of imprisonment would appear to be inconsistent with the principle of ‘imprisonment as a last resort’ which ought to be reserved only for those offenders who represent a serious risk to the community, and for whom no other penalty is appropriate. Most Aboriginal and Torres Strait Islander offenders who receive a short sentence of imprisonment do so when convicted of minor or low-level offending.
Prisoners serving short sentences are less likely to be able to access programs or training, and in that regard, the time in prison does little to address offending behaviour or to develop skills that might later promote desistence from offending.[17] Offenders on short sentences are generally released into the community without supervision or supports to assist reintegration into the community on release.[18]
Way forward
While the Pathways to Justice Report paints a bleak picture as to the state of over-incarceration of Aboriginal and Torres Strait Islander peoples in Australia, it also suggests a way forward. The ALRC made 35 recommendations for reform to address the scourge of over-incarceration. Implementing these recommendations would:
- promote substantive equality before the law for Aboriginal and Torres Strait Islander peoples;
- promote fairer enforcement of the law and fairer application of legal frameworks;
- ensure Aboriginal and Torres Strait Islander leadership and participation in the development and delivery of strategies and programs for Aboriginal and Torres Strait Islander people in contact with the criminal justice system;
- reduce recidivism through the provision of effective diversion, support and rehabilitation programs;
- make available to Aboriginal and Torres Strait Islander offenders alternatives to imprisonment that are appropriate to the offence and the offender’s circumstances; and
- promote justice reinvestment through redirection of resources from incarceration to prevention, rehabilitation and support, in order to reduce reoffending and the long-term economic cost of incarceration of Aboriginal and Torres Strait Islander peoples.[19]
[1] Tom McIlroy, ‘Closing the gap progress can’t take 73 years: Ken Wyatt’, The Australian Financial Review (3 July 2020).
[2] Australian Law Reform Commission, ‘Report: Pathways to Justice – Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’ (Media Release, 27 March 2018).
[3] Thalia Anthony, ‘FactCheck Q&A: are Indigenous Australians the most incarcerated people on Earth?’, The Conversation (online, 6 June 2017) <https://theconversation.com/factcheck-qanda-are-indigenous-australians-the-most-incarcerated-people-on-earth-78528>.
[4] Australian Law Reform Commission, Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, 2017) 90.
[5] Ibid 95, Figure 3.2.
[6] Australian Law Reform Commission, Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Summary Report No 133, 2017), 7–8.
[7] Australian Law Reform Commission (n 4) 98, Figure 3.5.
[8] Australian Law Reform Commission (n 6) 12.
[9] Australian Law Reform Commission (n 4) 451.
[10] Ibid 447.
[11] Ibid 100-102.
[12] Ibid 101, Figure 3.8.
[13] Ibid 101–2.
[14] Ibid 107.
[15] Ibid 230.
[16] Ibid 268.
[17] Mark Hughes, ‘Prison Governors: Short Sentences Do Not Work’, The Independent (20 June 2010).
[18] NSW expressly precludes prisoners serving prison terms of 6 months or less from parole supervision on release. See, eg, Crimes (Sentencing Procedure) Act 1999 (NSW) s 46. The NSW Sentencing Council has recommended repeal or amendment of s 46: NSW Sentencing Council, Abolishing Prison Sentences of 6 Months or Less (2004) 5. Other jurisdictions restrict parole to prisoners sentenced to terms over 12 months: Crimes (Sentencing) Act 2005 (ACT) s 65; Sentencing Act 1997 (NT) s 53; Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(a); Sentencing Act 1991 (Vic) s 11; Sentencing Act 1995 (WA) s 89(2).
[19] Australian Law Reform Commission (n 2).