The Inquiry

1.1        This Inquiry focuses on the problem of over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system, something that the Attorney-General of Australia, Senator the Hon George Brandis QC, described as a ‘national tragedy’,[1] and what law reform can do to ameliorate this situation. On 6 December 2016, the Attorney-General’s Department released draft Terms of Reference for public consultation, and on 10 February 2017, the ALRC received the final Terms of Reference.[2] His Honour Judge Matthew Myers AM was appointed as ALRC Commissioner to lead the Inquiry.

Terms of Reference

1.2        The ALRC was asked to consider laws and legal frameworks that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander peoples in custody. ‘Legal frameworks’ encompass police, courts, legal assistance services and prisons. The ALRC was also asked to consider a number of factors that decision makers take into account when deciding on a criminal justice response, including community safety, the availability of alternatives to incarceration, the degree of discretion available in decision making and principles informing decisions to incarcerate. The incarceration of Aboriginal and Torres Strait Islander women was specifically identified as an area for consideration.

1.3        The ALRC was asked to consider laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples’ offending including, but not limited to, laws that regulate the availability of alcohol, driving offences and unpaid fines and differences in application of laws across states and territories along with other access to justice issues.


1.4        Leading up to this Discussion Paper, the ALRC has undertaken a variety of stakeholder consultations to gain an understanding of the multifaceted and intergenerational context of Aboriginal and Torres Strait Islander incarceration. This included consultations with key stakeholders in Sydney, Dubbo, Brisbane, Perth, Alice Springs, Darwin, and Melbourne.[3] The Discussion Paper has also been informed by the insights provided in submissions on the draft Terms of Reference, highlighting key issues leading to incarceration.[4]

1.5        In keeping with usual ALRC practice, an Advisory Committee has been constituted for the period of the Inquiry. The Committee met twice during the preparation of the Discussion Paper: on 20 March 2017 and on 5 June 2017. A full list of Advisory Committee members is available on the ALRC website.

1.6        The Discussion Paper commences the second stage in the consultation process in this Inquiry. The ALRC will undertake further consultation across Australia, including with stakeholders in regional communities. Submissions received in response to this Discussion Paper, together with information gained from the consultation and research process, will inform the recommendations for law reform in the Report that will be provided to the Attorney-General by 22 December 2017.