1.7 While this Inquiry is considering the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system, it is important to recognise that ‘the majority of Aboriginal and Torres Strait Islander peoples never commit criminal offences’.
1.8 As the Attorney-General of Australia, Senator the Hon George Brandis QC, acknowledged in the Terms of Reference for this Inquiry, ‘while laws and legal frameworks are an important factor contributing to over-representation, there are many other social, economic, and historic factors that also contribute’.
1.9 Recognising such factors, the Terms of Reference direct the ALRC to have regard to existing data and research concerning ‘the broader contextual factors contributing to Aboriginal and Torres Strait Islander incarceration’ including:
the relationships between Aboriginal and Torres Strait Islander offending and incarceration and inter-generational trauma, loss of culture, poverty, discrimination, alcohol and drug use, experience of violence, including family violence, child abuse and neglect, contact with child protection and welfare systems, educational access and performance, cognitive and psychological factors, housing circumstances and employment.
1.10 The Terms of Reference recognise earlier important research that has touched or focused upon Aboriginal and Torres Strait Islander incarceration, its causes and its devastating effects. The ALRC is asked to identify and consider other reports, inquiries and action plans including but not limited to:
a. the Royal Commission into Aboriginal Deaths in Custody,
b. the Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report 1 August 2017),
c. Senate Standing Committee on Finance and Public Administration’s Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services,
d. Senate Standing Committee on Community Affairs’ inquiry into Indefinite Detention of People with Cognitive and Psychiatric impairment in Australia,
e. Senate Standing Committee on Indigenous Affairs inquiry into Harmful Use of Alcohol in Aboriginal and Torres Strait Islander Communities,
f. reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner,
g. the ALRC’s inquiries into Family violence and Family violence and Commonwealth laws, and
h. the National Plan to Reduce Violence against Women and their Children 2010–2022.
1.11 These past reports and inquiries have highlighted the many social, political and economic factors that contribute to Aboriginal and Torres Strait Islander imprisonment rates. Many of these are recognised in the national ‘Closing the Gap’ targets, and were reported on by the Productivity Commission in its report, Overcoming Indigenous Disadvantage: Key Indicators 2016.
1.12 Such factors include: disadvantage caused by a lack of education and low employment rates; inadequate housing, overcrowding and homelessness; poor health outcomes, including mental health, cognitive impairment including Foetal Alcohol Spectrum Disorders (FASD) and physical disability; and alcohol and drug dependency and abuse. The Royal Commission into the Protection and Detention of Children in the Northern Territory has also recognised the cyclical and intergenerational nature of social and economic disadvantage on Aboriginal and Torres Strait Islander peoples.
1.13 The findings from other inquiries provide a fuller picture of both the drivers of incarceration and opportunities that exist to address offending behaviours before the point of imprisonment. The ALRC will consider these issues in more detail in the Final Report.
1.14 The ALRC also acknowledges the physical and psychological harm caused to many Aboriginal and Torres Strait Islander women and children through family violence and abuse. Aboriginal and Torres Strait Islander communities and individuals have also been negatively affected by laws, policies and practices implemented by successive government policies, such as assimilation and child removal.
1.15 As a law reform body, the focus of the ALRC in this Inquiry is, necessarily, on reform to law and legal frameworks that can address the over-representation of Aboriginal and Torres Strait Islander peoples in prisons. However, the ALRC acknowledges that law is only one piece in a much larger historical, social and economic context that contributes to the drivers of incarceration.
Child protection and adult incarceration
1.16 One particular contributing factor to adult incarceration rates has been shown to be out-of-home care (OOHC). This Inquiry focuses on the incarceration of adult Aboriginal and Torres Strait Islander people. However, research has made links between child protection, OOHC, and juvenile and adult incarceration.
1.17 Consultations to date in this Inquiry have emphasised the normalisation of incarceration in many Aboriginal families, and in particular those where children have been removed, or have been in juvenile detention. In such a context, juvenile detention can be seen as a key driver of adult incarceration. For example, a 2005 study into the likelihood of juveniles reoffending as adults found that 90% of Aboriginal and Torres Strait Islander youths who appeared in a children’s court went on to appear in an adult court within eight years—with 36% of these receiving a prison sentence later in life. Having a criminal record—particularly as a juvenile or as a young adult—in turn increases the likelihood of unemployment, poverty and substance abuse, which again increases the likelihood of future incarceration.
1.18 Young people placed in OOHC care are 16 times more likely than the equivalent general population to be under youth justice supervision in the same year. As the ALRC previously noted in its 2010 report, Family Violence—A National Legal Response:
There is a strong correlation between juvenile participation in crime and rates of reported neglect or abuse … Research indicates that an offending child or young person is likely to have a history of abuse or neglect, and to have been in out-of-home care. In Victoria, a study of young people sentenced to imprisonment by the children’s court over a period of eight months in 2001 found that 88% had been subject to an average of 4.6 notifications to the child protection agency. Almost one-third had been the subject of six or more notifications, and 86% had been in out-of-home care. Over half of these had had five or more care placements.
1.19 This risk increases when the child is Aboriginal. In 2014–15, Aboriginal and Torres Strait Islander children represented 90% of all children subject to care and protection orders. At June 2015, Aboriginal and Torres Strait Islander children were placed into OOHC at 9.5 times the rate of non-Aboriginal children.
1.20 The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) reported that almost half of the 99 Aboriginal and Torres Strait Islander people whose deaths were reviewed by that Commission had previously been removed from their parents. The 1997 Bringing them Home report further highlighted the relationship between OOHC and the increased likelihood of coming into contact with the criminal justice system.
1.21 In joint advice correspondence to the ALRC from Community Legal Centres NSW, Women’s Legal Services NSW, Redfern Legal Centre, Kingsford Legal Centre, the Public Interest Advocacy Centre, Community Legal Centres NSW and the National Association of Community Legal Centres, attention was drawn to the correlation between OOHC, the criminal justice system and homelessness, relying upon a 2012 study of the Australian Institute of Health and Welfare.
1.22 The correspondence suggested that a review undertaken of some 111 NSW Children’s Court criminal files found that 34% of young people appearing before the court were, or had been, in OOHC, and that children in care were 68 times more likely to appear in the Children’s Court than other children. Many of these children and young people were charged with assault against OOHC staff or damage of their OOHC property.
1.23 Similarly Judge Johnstone, President of the Children’s Court of New South Wales, noted that children who had been placed into out-of-home care were over-represented in the criminal justice system.
1.24 The ALRC notes that other current inquiries may encompass a review of child protection laws and processes for Aboriginal and Torres Strait Islander children. These include the current Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report in August 2017), and the 2017 NSW Legislative Council Inquiry into Child Protection. The Royal Commission into Institutional Responses to Child Sexual Abuse may report in part on the issue of OOHC, incorporating a national response focusing on the reduction of all abuse in that setting. While there are strategies at state level, there has not been a national review of the laws and processes operating within the care and protection systems of the various states and territories. The ALRC considers that such a review would be timely.
Rural and remote communities
1.25 Although the majority of Aboriginal and Torres Strait Islander peoples live in cities or regional areas (57% in major cities or inner regional areas), a relatively high proportion live in remote and very remote areas (21%). In comparison, almost 90% of non-Indigenous Australians (over 19 million people) live in major cities or inner regional areas.
1.26 For those Aboriginal or Torres Strait Islander communities living in regional and remote areas, disadvantage can be compounded by a lack of access to services and infrastructure. The Productivity Commission stated:
Socioeconomic disadvantage directly impacts on the ability of Indigenous people to access justice. Socioeconomic disadvantage among Aboriginal and Torres Strait Islander Australians is widespread and multifaceted: various analyses show that, on average, Indigenous people experience poorer outcomes than non-Indigenous people in the areas of education, income, health and housing … Socioeconomic disadvantage is linked to geographic isolation, which in itself can represent a barrier in accessing justice.
1.27 The remoteness of many Aboriginal communities and comparative lack of legal services and community programs including drug and alcohol rehabilitation programs, adult literacy programs or employment programs, was raised with the ALRC during the consultation process as a contributing factor to incarceration. For example, a lack of services and programs means that there are few community sentencing options for offenders who live in remote communities.
1.28 Access to justice issues arise in this context, including a lack of interpreters who can assist offenders to understand the criminal justice process, as well as limited access to legal representation with a reliance on ‘fly in fly out’ judicial officers and legal practitioners, in some cases. Where duty lawyer schemes are provided on a ‘fly in fly out’ basis, the ALRC has heard that time pressures may lead to the provision of compromised advice and representation.
Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Terms of Reference.
Council of Australian Governments, National Indigenous Reform Agreement (Closing the Gap) (2009).
Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2016—Report (Produced for the Steering Committee for the Review of Government Service Provision, 2016).
Commonwealth, Royal Commission into the Protection and Detention of Children in the Northern Territory, Interim Report (2017) 35.
Hannah McGlade, Our Greatest Challenge: Aboriginal Children and Human Rights (Aboriginal Studies Press, 2012).
Chris Cunneen, Racism, Discrimination and the over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues (2006) 334–5.
Mick Gooda, Submission No 5 to Senate Finance and Public Administration References Committee, Parliament of Australia, Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (27 April 2015) 4–5.
Cited in Senate Select Committee on Regional and Remote Indigenous Communities, Parliament of Australia, Indigenous Australians, Incarceration and the Criminal Justice System—Discussion Paper (2010) 32.
Don Weatherburn, Arresting Incarceration—Pathways out of Indigenous Imprisonment (Aboriginal Studies Press, 2014) 86–7.
Australian Institute of Health and Welfare, Young People in Child Protection and under Youth Justice Supervision 2014–15 (2016).
Australian Law Reform Commission and NSW Law Reform Commission, Family Violence—A National Legal Response, ALRC Report No 114, NSWLRC Report No 128 (2010) 973.
Catia G Malvaso, Paul H Delfabbro and Andrew Day, ‘The Child Protection and Juvenile Justice Nexus in Australia: A Longitudinal Examination of the Relationship between Maltreatment and Offending’ (2017) 64 Child Abuse & Neglect 32; Australian Institute of Health and Welfare, above n 15, 8.
Productivity Commission, above n 7, 4.92.
Australian Institute of Health and Welfare, above n 15, 54.
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 2, 52.
Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997) 164.
Community Legal Centres NSW, Women’s Legal Services NSW, Redfern Legal Centre, Kingsford Legal Centre, the Public Interest Advocacy Centre, Community Legal Centres NSW and the National Association of Community Legal Centres, Advice Correspondence (24 April 2017).
Australian Institute of Health and Welfare, Children and Young People at Risk of Social Exclusion: Links Between Homelessness, Child Protection and Juvenile Justice (2012) vii.
Katherine McFarlane, ‘From Care to Custody: Young Women in out-of-Home Care in the Criminal Justice System’ (2010) 22(2) Current Issues in Criminal Justice 346. McFarlane examined 111 Children’s Court criminal matter files heard at Parramatta Children’s Court on specific days, chosen at random, from a six-month period between June and December 2009.
Judge Peter Johnstone, ‘Cross-Over Kids—The Drift of Children From the Child Protection System Into the Criminal Justice System’ (Speech, Noah’s on the Beach, Newcastle, 5 August 2016) 22.
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Interim Report Volume 2 (2014); Legislative Council General Purpose Standing Committee No 2, Parliament of NSW, Inquiry into Child Protection (2017).
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Consultation Paper: Institutional Responses to Child Sexual Abuse in Out-of-Home Care (2016).
See, eg, Department of Community Services (ACT), A Step Up for Our Kids: Out of Home Care Strategy 2015–2020.
Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians, June 2011, Cat No 3238.0.55.001 (2013).
Productivity Commission, Access to Justice Arrangements—Volume 2 (2014) 764.