11.1     The Terms of Reference for this Inquiry ask the ALRC to develop law reform recommendations with regard to ‘access to justice issues including the remoteness of communities, the availability of and access to legal assistance and Aboriginal and Torres Strait Islander language and sign interpreters’.

11.2     In this chapter, the ALRC recognises the particular obstacles and issues facing Aboriginal and Torres Strait Islander defendants, including language and other communication difficulties, and the provision of legal services. Unless these obstacles are addressed, Aboriginal and Torres Strait Islander peoples will continue to enter the criminal justice system, and may be incarcerated unnecessarily.

11.3     The ALRC proposes that criminal justice systems should ensure that Aboriginal and Torres Strait Islander defendants are understood and are able to understand the proceedings against them. In some states and territories this requires the provision of suitable interpreter services.

11.4     When cognitive impairment or mental health issues prevent an Aboriginal and Torres Strait Islander person from understanding the proceedings against them, fitness to be tried statutory regimes should not provide for automatic indeterminate detention. The ALRC proposes the abolition of indeterminate detention regimes in favour of special hearing processes that can lead to limiting terms.

11.5     The ALRC recognises the work of specialist sentencing courts in providing access to justice for Aboriginal and Torres Strait Islander peoples, and, together with diversion, asks what more can be done in this area. The provision of appropriate legal services, particularly in regional and remote areas, is also discussed.