Sentencing Aboriginal offenders in Canada

6.46     Canada’s Aboriginal Peoples,^[81] like Australia’s Aboriginal and Torres Strait Islander peoples, are over-represented in the prison population.^[82] For example, in 2013, Canada’s Aboriginal Peoples comprised 4% of the Canadian population, but almost 25% of the prison population.^[83]

6.47     Canada’s history is one of colonisation, and the impact on its original inhabitants, in many ways, mirrors the Australian experience. For example, the Canadian Royal Commission on Aboriginal Peoples acknowledged that many Canadian Aboriginal Peoples were dispossessed from their homelands, with many made wards of the state through protectionist government policies that ‘sought to obliterate their cultural and political institutions’.^[84]

6.48     In Canada, police were often responsible for implementing a range of government policies, including those relating to assimilation and removal of children into residential schools.^[85] The relationship between Canadian Aboriginal Peoples and police has been strained, and marked by distrust on both sides. Issues related to over and under-policing of Canadian Aboriginal Peoples remain problematic.^[86] Cultural differences, poverty, the effect of intergenerational trauma and institutionalisation in residential schools, substance abuse, and social dysfunction resulting from discrimination and racism continue to result in over-representation of Aboriginal Peoples in Canadian prisons.^[87]

Statutory requirement to consider Aboriginality in sentencing

6.49     Australian and Canadian sentencing approaches are not dissimilar, although there are some differences. Canadian sentencing legislation incorporates a sentencing principle that is omitted from Australian statutes: ‘to provide reparations for harm done to victims or to the community’.^[88] Only the ACT and SA have a similar principle, and provide that any ‘action the offender may have taken to make reparation for injury, loss or damage resulting from the offence’ is a sentencing consideration.^[89] The Canadian statute also omits punishment as a sentencing purpose.^[90]

6.50     These differences—the omission of punishment and incorporation of reparation for harm done—provide a foundation for a ‘restorative’ framework in delivering justice in Canada. There are some parts of the criminal justice system in Australian jurisdictions that incorporate aspects of restorative justice,^[91] and a number of Australian statutes acknowledge the impact on victims and the need for offender accountability in sentencing considerations. However there remains a focus on the retributive component of sentencing in most Australian jurisdictions.

6.51     In 1995, the Canadian Parliament amended the Criminal Code to codify the purposes and principles of sentencing. In response to the rates of Aboriginal incarceration, the amending bill included s 718.2(e). Section 718 sets out broadly the ‘Purposes and principles of sentencing’. Section 718.2(e)relevantly provides that a court that imposes a sentence shall also take into consideration the following principle:

all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.^[92]

6.52     The then Minister for Justice noted the ‘sad over-representation’ of Aboriginal Peoples in Canadian prisons as the rationale for the provision.^[93] The provision was considered by the Canadian Supreme Court in the case of Jamie Tanis Gladue.

Canadian common law

Gladue

6.53     In this case,^[94] Gladue, an Aboriginal woman, pleaded guilty to the manslaughter of her husband, whom she suspected of having an affair. After consuming alcohol at a party on her 19th birthday, the offender stabbed her husband twice with a kitchen knife, once as he attempted to flee. She appealed the three-year sentence imposed.

6.54     The Supreme Court examined the legislative and contextual background to s 718.2(e). It found the provision to be ‘remedial in nature’ and ‘is designed to ameliorate the serious problem of over-representation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing’.^[95] In reaching this conclusion, the Court noted that while the parliamentary debate on the amending legislation is ‘clearly not decisive’ on s 718.2(e),^[96] statements made by the Minister for Justice at the time and other members of Parliament ‘corroborate and do not contradict’ its conclusion.^[97] The Court also referred to a number of reports to support its conclusion on the remedial nature of the section.

6.55     The Court stressed that sentencing is an ‘individual process’,^[98] but held that the effect of s 718.2(e) is to ‘alter the method of analysis’^[99] that judges must use when determining an appropriate sentence for Aboriginal persons:

Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:
(A) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.^[100]

6.56     The Court went further, noting that judges would require information about the accused to facilitate this process: ‘Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing’.^[101]

6.57     The Court emphasised that s 718.2(e) was not to be interpreted as a ‘means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed’.^[102]

6.58     The Supreme Court held that the sentencing judge and the Court of Appeal had erred in their application of s 718.2(e). However, noting the seriousness of the offence, including the aggravating factor that it involved domestic violence, the Court considered the three-year term of imprisonment was not unreasonable and dismissed the appeal.

6.59     A number of higher courts affirmed the principles set out in Gladue.^[103]Nonetheless, the numbers of Aboriginal Canadians incarcerated continued to rise.

Ipeelee

6.60     Post-Gladue, the application of s 718.2(e) and the Gladue principles varied. In 2012, the Supreme Court revisited s 718.2(e) in R v Ipeelee.^[104] In a majority judgment, the Court commented that, although the provision ‘had not had a discernible impact on the over-representation of Aboriginal people in the criminal justice system’,^[105] the Gladue principles‘were never expected to be a panacea’:^[106]

there is some indication … from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.^[107]

6.61     The Court ultimately considered that the erroneous application of the principles arose for a number of reasons. It found that, in some cases, the court required an offender to ‘establish a causal link between background factors and the … current offence’;^[108] and that its application to serious or violent offences was ‘irregular and uncertain’.^[109] The Court rejected that an offender needed to establish a causal link between background factors and offending; and that sentencing judges have a duty to apply s 718.2(e) and Gladue, regardless of the seriousness of the offending.^[110]

6.62     The Ipeelee decision identified and addressed three key criticisms that were considered to have plagued the efficacy of the remedial provision, s 718.2(e), and the Gladue principles:

(1) sentencing is not an appropriate means of addressing over-representation; (2) the Gladue principles provide what is essentially a race-based discount for Aboriginal offenders; and (3) providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentence parity. In my view, these criticisms are based on a fundamental misunderstanding of the operation of s 718.2(e) of the Criminal Code.^[111]

6.63     In addressing each of these criticisms, the Court in Ipeelee considered that sentencing judges have an important role to play in effectively deterring criminality and rehabilitating offenders, and that where ‘current sentencing practices do not further these objectives, those practices must change so as to meet the needs of Aboriginal offenders and their communities’.^[112] Noting that ‘just sanctions are those that do not operate in a discriminatory manner,^[113] the Court found that Parliament’s intention in enacting the provision was that ‘nothing short of a specific direction to pay particular attention to the circumstances of Aboriginal offenders would suffice to ensure that judges undertook their duties properly’.^[114]

6.64     The Court noted that Gladue explicitly rejected the argument that s 718.2(e) was an ‘affirmative action provision’^[115] or an ‘invitation to engage in reverse discrimination’.^[116] The Court in Ipeelee, emphasising the Gladue principles, found that ‘[t]he provision does not ask courts to remedy the over-representation of Aboriginal people in prisons by artificially reducing incarceration rates’:^[117]

Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2 (e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.^[118]

6.65     In response to the third criticism that utilising a different method of analysis is inherently unfair and ‘unjustifiably distinguishes between offenders who are otherwise similar’,^[119] the Court rejected this, finding that it ‘ignores the distinct history of Aboriginal peoples in Canada’.^[120] Noting the extensive history of reports and commissions on that history, including the experience of Aboriginal peoples with the criminal justice system, the Court considered that ‘current levels of criminality are intimately tied to the legacy of colonialism’.^[121]

6.66     The Supreme Court in Ipeelee emphasised that nothing in Gladue prevents consideration of the background and systemic factors for other, non-Aboriginal offenders, noting in fact it is the opposite and that consideration of such factors is also important for a sentencing judge in the sentencing of these offenders.^[122]

6.67     Ipeelee has been said to ‘represent a significant clarification of the law’^[123] post-Gladue, particularly in affirming its application to all, including serious, offences.

Gladue specialist sentencing reports

6.68     Gladue reports are specialist Aboriginal sentencing reports prepared in some Canadian provinces to facilitate s 718.2(e) of the Criminal Code. Gladue reports are a way of integrating one part of specialist court processes into mainstream courts. Gladue reports are different from pre-sentence reports (PSRs). Although both provide information to a court about an offender, Gladue reports are intended to promote a better understanding of the underlying causes of offending, including the historic and cultural context of an offender. These factors may go some way toward addressing the over-representation of Aboriginal and Torres Strait Islander peoples in prison. PSRs serve a different, but related, function. Supporters of Gladue reports emphasised, for example, that simply because PSRs exist does not suggest there is no need for Gladue reports. Rather, the two would complement each other.

6.69     According to Jonathan Rudin, Program Director of Aboriginal Legal Services in Toronto, Ontario, Gladue reports are written to include the offender’s ‘voice’ and ‘story’:

when we do our Gladue reports we spend time interviewing the client and as many other people as we can … Gladue reports tend to be written in the words of the people we interview … we are not summarising what someone says, we are using their language. We don’t edit it, we don’t do anything with it, here is their story [so] what you get are the voices of the individuals who are involved in the person’s life. And certainly that’s very rare because you can go through the court system in Canada from charge to plea, and if you are an accused person you may never say a word to the court.^[124]

6.70     Gladue reports are ideally prepared ‘with the help of someone who has a connection to and understands the Aboriginal community’.^[125] They assist in putting the offender’s ‘particular situation into an Aboriginal context so that the judge can come up with a sentence that’s unique to you and your culture and has an emphasis on rehabilitation and healing’.^[126] This context may include an examination of complex issues of an historical and cultural nature that are unique to, and prevalent in, Canadian Aboriginal communities, including intergenerational trauma, alcohol and drug addiction, family violence and abuse, and institutionalisation. As observed by Rudin:

information about things that judges may not know about, like the history of residential schools, like the impact of adoption on aboriginal peoples, the history of addictions for aboriginal peoples in the country which is different from addictions in other communities. Gladue reports also provide detailed information on the impacts of particular experiences including those specific to the person as a result of their Aboriginal heritage, community and experience.^[127]

6.71     The time taken to prepare a Gladue report compared to a PSR is significantly higher, reflecting the time spent with the offender and significant others. In the Ontario context, it has been estimated that a Gladue report can take up to 20 hours to complete, compared to the eight to 10 hours for a PSR.^[128]

6.72     An evaluation of a pilot in British Columbia noted a number of key differences between Gladue reports and PSRs. Gladue reports were more comprehensive, ‘specifically with respect to Gladue factors’,^[129] including ‘more information about resources in rural and remote communities’,^[130] and ‘options tailored to the specific needs of each person’.^[131] The evaluation found that the greatest contribution Gladue reports made to the court was ‘their potential to draw concrete connections between the intergenerational impacts of colonialism (residential schools, community displacement, child apprehensions) and the person in court for sentencing’.^[132]

6.73     The impact of Gladue reports in Canada varies across the provinces. Offenders in some provinces have no capacity to access a Gladue report, while other provinces have been able to establish mechanisms to facilitate the preparation of Gladue reports. Aboriginal Legal Services in Toronto, Ontario, for example, has an established program, supported by funding from Legal Aid Ontario, with trained caseworkers who work with offenders to prepare Gladue reports.

6.74     Gladue reports have been described as having a definitive impact at an individual level:

When we do a Gladue report we often see that the sentencing an individual receives is different than what, for example, the Crown and defence were thinking of going into the sentencing. So what we see is when judges have information about the circumstances of an [A]boriginal offender, when Crowns have that information, when defence counsel has that information, the sentences that people get change. So the Gladue reports make a difference on a micro level.^[133]

6.75     In 2007, based on his experience in Toronto, Rudin suggested that the impact of a Gladue report is not reflected in Aboriginal incarceration rates.^[134]

6.76     In 2011, the Legal Services Society (LSS) received funding from the Law Foundation of British Columbia to pilot the preparation of Gladue reports in British Columbia. An evaluation of the LSS pilot suggested that ‘Gladue reports may contribute to fewer and shorter incarceration sentences for Aboriginal people’.^[135] A comparison of a sub-sample of 42 completed Gladue sentencing cases with a matched sample of 42 LSS Aboriginal client cases where there was no Gladue report, indicated that ‘fewer Gladue clients (23) received a jail sentence than their non-Gladue counterparts (32)’; and that median sentence length for Gladue clients was substantially lower than for the non-Gladue sample (18 days compared to 45 days).^[136]

6.77     Stakeholders expressed strong support for Australian jurisdictions to introduce a provision requiring sentencing courts to take into account the unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples.^[137] The current approach—to take subjective disadvantage into account—was considered to be an insufficient response to a unique and, often, destructive set of circumstances that only Aboriginal and Torres Strait Islander peoples have experienced in this country.^[138] For example, partially in response to the High Court in Munda,^[139]the International Commission of Jurists in Victoria submitted that it cannot be

right that prison terms calculated without regard to the unique history of social disadvantage recognise the human dignity of Aboriginal offenders. Nor, against a background of long term and worsening overrepresentation in custody, can it be right to proceed to sentence, in the absence of proof to the contrary, on the assumption that Aboriginality has nothing to do with an offender’s criminality or to place on the individual offender the full burden of proving the link between his or her offending and his background.^[140]

6.78     It was the view of most stakeholders that the principles of ‘individualised justice’ and ‘equality before the law’—understood as substantive equality—required sentencing courts to consider unique and systemic factors of Aboriginal and Torres Strait Islander offenders.^[141] The NSW Bar Association suggested that the introduction of a provision akin to the Canadian provision would ‘promote equality before the law by promoting sentencing that is appropriate and adapted to the differences that pertain in the case of Aboriginal and Torres Strait Islander people’.^[142] The NSW Bar Association further noted that Australian sentencing courts are ‘bound to take into account all material facts including those which exist only by reason of the offender’s membership of an ethnic or other group’, in which failure to take into account the unique systemic circumstances of Aboriginal and Torres Strait Islander offenders ‘thwarts the pursuit of equality and individualised justice’. ^[143] Put simply by Change the Record Coalition, the approach taken in Canada represents an ‘application of equal justice, not a denial of it’.^[144]

6.79     While sentencing courts can take disadvantage into account, including disadvantage related to factors systemic to Aboriginal and Torres Strait Islander communities, this relies on submissions by defence to that effect. Stakeholders considered that an explicit provision, requiring consideration of unique systemic and background factors of Aboriginal and Torres Strait Islander offenders in sentencing, would encourage judicial officers (and counsel) to take a proactive approach toward ensuring information relevant to those factors is before the sentencing court.^[145] As noted by the International Commission of Jurists, a provision of this type would impose ‘a duty to enquire’ and to ensure ‘all material facts to the determination of sentence have been taken into account’.^[146]

Previous reviews

6.80     In 2006, the Law Reform Commission of Western Australia (LRCWA) considered the factors that sentencing courts take into account in its Inquiry into Aboriginal customary law, and recommended that WA introduce a provision requiring sentencing courts to consider the cultural background of the offender.^[147] The LRCWA ‘firmly rejected’ the argument that permitting courts to take into the cultural background of an offender would be contrary to the principle of equality before the law, noting that ‘all accused, whether Aboriginal or not, are entitled to present relevant facts concerning their social, religious and family background and beliefs’.^[148]

6.81     The LRCWA also acknowledged that criminal histories of Aboriginal and Torres Strait Islander peoples could be a consequence of systemic bias and that it was critical that sentencing courts examine the circumstances of prior offending before issuing a custodial sentence. It further recommended that WA sentencing statutes expand on the principle of sentencing as a last resort in statute so that ‘when considering whether a term of imprisonment is appropriate the court is to have regard to the particular circumstances of Aboriginal people’.^[149] In doing so, it stated:

The Commission wishes to make it clear that its recommendation does not mean that Aboriginal offenders will not go to prison. Nor does it mean that Aboriginal people will be treated more leniently than non-Aboriginal people just on the basis of race. By making this recommendation, the Commission strongly encourages courts in Western Australia to consider more effective and appropriate options for Aboriginal offenders, such as those developed by an Aboriginal community or a community justice group. What the Commission is recommending is that when judicial officers are required to sentence Aboriginal people they turn their minds not just to the matters that are directly relevant to the individual circumstances of the offender but to the circumstances of Aboriginal people generally. These circumstances include over-representation of Aboriginal people in the criminal justice system.^[150]

6.82     Prior to the decision in Bugmy in 2013, the NSW Law Reform Commission (NSWLRC) considered whether a person’s Aboriginality should be a relevant matter in sentencing. It noted that submissions to its Inquiry on sentencing in NSW supported such a proposal, with the Bar Association of NSW and Aboriginal Legal Service NSW/ACT advocating for an amendment to s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which prescribes imprisonment to be a last resort, so to read:

A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives (with particular attention to the circumstances of Aboriginal offenders), that no penalty other than imprisonment is appropriate.^[151]

6.83     The NSWLRC did not recommend this legislative amendment; rather it recommended waiting until post-Bugmy for judicial consideration of the issue. It did, however, acknowledge that ‘there may be merit in adding … to the factors that a court must take into account a reference to the circumstances of Aboriginal and Torres Strait Islander offenders’,^[152] and suggested the following wording:

the offender’s character, general background (with particular attention to the circumstances of Aboriginal and Torres Strait Islander offenders), offending history, age, and physical and mental condition (including any cognitive or mental health impairment).^[153]

6.84     In 2015, the Standing Committee on Justice and Community Safety report Inquiry into Sentencing in the ACT, suggested that the current provision requiring sentencing courts in the ACT to consider the ‘cultural background’ of the offender^[154] did not go far enough, and recommended legislative change so that the relevant sentencing statute ‘explicitly require courts to consider the Indigenous status of offenders at sentencing’.^[155]

6.85     In 2017, a report on the over-representation of Aboriginal and Torres Strait Islander women in Australian prisons by the Human Rights Law Centre and Change the Record Coalition commented that

in light of the High Court’s decision [in Bugmy], it is now incumbent on state and territory governments to legislate to ensure that historical and systemic factors that have contributed to Aboriginal and Torres Strait Islander people’s over-imprisonment inform decisions by courts about whether or not to imprison.^[156]

6.86     The NT government advised the ALRC that Aboriginality as a sentencing factor will be considered in the NT as part of the Aboriginal Justice Agreement that is under development.^[157]

Stakeholders to this Inquiry

6.87     Stakeholders to this Inquiry expressed support for the introduction of provisions to the states and territories that mirrored the Canadian statutory principle of imprisonment as a last resort—requiring the sentencing court to pay particular attention to the circumstances of Aboriginal offenders.^[158] Moreover, stakeholders supported the introduction of provisions in state and territory sentencing statutes that represented the interpretation given to s 718(e), that is, requiring sentencing courts to consider the unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples when making sentencing decisions.^[159]

6.88     Ultimately, in whatever form, the provision should require sentencing courts—as well as taking account of other sentencing considerations—to undertake a two-stepped approach when sentencing an Aboriginal or Torres Strait Islander offender. As described by the Change the Record Coalition (with reference to the Canadian approach), the sentencing of an Aboriginal and Torres Strait Islander offender should involve the sentencing court first taking judicial notice with respect to the experience of Aboriginal and Torres Strait Islander peoples as a group, including experiences of over-representation and, second, consideration of the extent to which the offender’s individual circumstances can be understood by reference to this group experience.^[160] This approach has been described as providing ‘the necessary link between the collective experience and the individual circumstances’.^[161]

6.89     A provision to this effect was considered a necessary mechanism to require sentencing courts to consider the impact of the unique and systemic disadvantage of Aboriginal and Torres Strait Islander peoples. For example, Victorian Aboriginal Legal Services (VALS) submitted that, given that the severe impacts of colonisation are unique to Aboriginal and Torres Strait Islander peoples, ‘legislation should direct the courts to consider these impacts as means to reduce the inequality of incarceration that has arisen as a result’.^[162]

6.90     Legal Aid ACT strongly supported the introduction of a specific Aboriginal and Torres Strait Islander focused sentencing provision across all jurisdictions that directed sentencing courts to expressly consider the ‘unique systemic and background factors’ affecting Aboriginal and Torres Strait Islander peoples. This would include, for example, the effects of dispossession on Aboriginal and Torres Strait Islander offenders. It stressed that the proposed provision would not be a

mechanism to reduce a sentence by virtue of “race”. Rather, it would function as a “legislative hook”, allowing courts to properly explore relevant cultural factors, with the aim of consistently delivering equitable and apposite sentences.^[163]

6.91     The Mental Health Commission supported legislative amendment that would ‘trigger the courts and the legal profession to actively consider and seek out those matters unique to Aboriginal people and which might not be immediately obvious without specialised inquiry’.^[164] The NSW Bar Association noted that consideration of systemic and background factors would operate as a ‘check’ before any sentence of imprisonment was imposed, and inform the type of sentence imposed, thereby ‘promoting both proportionality and individualised sentencing’.^[165]

6.92     Consistency was also a key theme underwriting the need for the provision. Legal Aid ACT acknowledged that, while the Fernando principles provided some insight into the situations of Aboriginal and Torres Strait Islander peoples, the principles were ‘often unevenly applied and retained a limited scope’.^[166]

6.93     The Human Rights Law Centre noted that the provision in Canada had been interpreted by the Canadian courts to include the consideration of matters such as the ‘history of colonialism, displacement and forced removal of children, and how that history continues to translate into lower educational attainment and incomes, higher rates of substance abuse and suicide, and higher imprisonment rates’. The Human Rights Law Centre suggested that a specific legislative provision was ‘central to promoting consistency in how the judiciary considers the impacts of colonisation, discrimination and disadvantage, which underpin the over-imprisonment of Aboriginal and Torres Strait Islander people’.^[167]

6.94     Criminal Lawyers Association of the Northern Territory (CLANT) suggested that legislative enactment would ensure ‘consideration of such matters occurs on a regular and consistent basis, and would place more of an onus on courts to give them proper weight as a matter of course’. CLANT identified this to be particularly important for sentencing courts in the NT, which deal with a high proportion of Aboriginal and Torres Strait Islander offenders, and where the circumstances of Aboriginal and Torres Strait Islander disadvantage are ‘particularly acute and pervasive’.^[168]

6.95     Some stakeholders considered there to be no need to legislate such a consideration. It was contended that existing legislative provisions—including sentencing purposes, principles and factors such as parsimony, ‘imprisonment as a last resort’, and consideration of an offender’s general background—along with well established common law principles, already allowed for consideration of all relevant material facts to be taken into account when sentencing Aboriginal and Torres Strait Islander offenders.^[169] This includes consideration of any background of disadvantage and available sentencing alternatives.

6.96     It was suggested by the Office of the Director of Public Prosecutions (NSW) (NSW ODPP) that Australian courts already take into account an offender’s deprived background when sentencing offenders, relying on submissions from the parties and supporting evidence to establish the extent and nature of deprivation and other relevant information specific to the individual offender.^[170] NSW Chief Magistrate Henson submitted that Bugmy was well understood in the Local Court of NSW as

continuing to reinforce the need for individualised sentencing, such that consideration of a background of deprivation of an Aboriginal offender for the purpose of mitigating a sentence requires the identification in each case of specific material that tends to establish that deprivation.^[171]

6.97     The Institute of Public Affairs (IPA) opposed the introduction of any provision on different grounds, arguing that disadvantage did not always play a ‘material role’ in the offending of disadvantaged people. The IPA pointed out that many Aboriginal and Torres Strait Islander people living in adverse circumstances do not commit crime, and that there should be no ‘presumption that socioeconomic circumstances are or should be considered mitigatory’.^[172] The IPA agreed with the High Court, suggesting that assuming Aboriginality is a ‘disadvantage sufficient to diminish culpability expresses a denial of the agency, and thus dignity, of disadvantaged individuals, and risks portraying all Indigenous communities as inherently disordered’. IPA argued that:

Judges have, and should retain, discretion to consider how a specific offender’s actions have harmed society, and the proper role of specific punishments in addressing that harm, but this discretion is bounded by the demands of equal justice and proportionality and therefore does not include racial considerations.^[173]

Obstacles

6.98     There may be legal obstacles to introducing a provision of this type. Stakeholders have raised two such possibilities: s 10 of the Racial Discrimination Act 1975 (Cth) (RDA), and, in the NT, s 16AA of Crimes Act 1914 (Cth). These are discussed below.

Racial Discrimination Act 1975

6.99     In the Discussion Paper, the ALRC asked stakeholders whether states and territories should introduce a statutory requirement to consider Aboriginality in sentencing in light of the decision in Bugmy v the Queen.In Bugmy v the Queen,^[174] the High Court raised, without further comment, the question of whether a state law requiring consideration of Aboriginality in sentencing could be invalid by reason of inconsistency with s 10 of the RDA, which states:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.^[175]

6.100  The ALRC considers that the RDA is unlikely to be an impediment to enacting such a statutory requirement—a view supported by stakeholders.^[176]

6.101  Where a state or territory law confers a right or benefit which does not have universal operation, questions of invalidity do not arise. Instead, s 10(1) of the RDA would operate to extend the right or benefit to persons of any race, colour, or national or ethnic origin. Australian sentencing courts are already ‘bound to take into account all material facts including those which exist only by reason of the offender’s membership of an ethnic or other group’.^[177] The recommended statutory requirement seeks to encourage judicial officers (and counsel) to take a proactive approach toward ensuring information relevant to those factors is put before the court. It does not contain a prohibition, and nor does it deprive a person of a right they previously enjoyed, and therefore would not be invalid. Section 10 of the RDA would operate to direct the court to consider factors arising from an accused person’s membership of any racial or ethnic group as part of the sentencing process.^[178]

6.102  Legal Aid ACT submitted that the issue may be side-stepped by ‘careful and broad’ drafting to direct courts to contemplate any ‘unique systemic background factors’ that may have impacted a defendant, with an example of the effect of dispossession on Aboriginal people highlighted in the explanatory note.^[179]

6.103  Some stakeholders suggested that the recommended statutory requirement does not engage s 10 of the RDA at all, either because it does not involve an unequal enjoyment of a fundamental right or freedom, or because the provision constitutes a ‘special measure’ under the exception in s 8 of the RDA.^[180]

Crimes Act 1914 (Cth)

6.104  The other legislative provisions that stakeholders raised as a possible impediment applied to sentencing in the NT. Sections 16A(2A) and 16AA of the Crimes Act 1914 (Cth) prohibits sentencing judges in the NT from considering customary law and cultural practice to mitigate criminal conduct:

(1)    In determining the sentence to be passed, or the order to be made, in relation to any person for an offence against a law of the Northern Territory, a court must not take into account any form of customary law or cultural practice as a reason for:

(a)     excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

(b)    aggravating the seriousness of the criminal behaviour to which the offence relates.

6.105  Section 16A(2A) provides the same prohibition for federal offenders. Stakeholders, including the NT Anti-Discrimination Commissioner, called for these provisions to be repealed.^[181]

6.106  The Commonwealth provisions were introduced to ‘prevent customary law from being used to mitigate the seriousness of any offence that involves violence against women and children’.^[182] The Northern Territory Supreme Court has found that provisions of this type did not prevent courts from considering customary law or cultural practice to: provide context for offending; establish good prospects of rehabilitation (relating to sentencing); and to establish the character of the accused.^[183]

6.107  It is not clear how s 16AA may have an impact on the operation of the recommended provision to consider the unique and systemic background factors affecting Aboriginal and Torres Strait Islander offenders in the NT. As customary law and cultural practice can be considered to provide context for offending, the effect of s 16AA on the operation of the recommended provision may be minimal. Nonetheless, the ALRC was advised by CLANT that, in order to give statutory consideration to Aboriginal and Torres Strait Islander disadvantage when sentencing in the NT, ‘necessary amendments will need to be made to other legislation that seeks to regulate how evidence of custom and culture is to be presented’.^[184] Accordingly, the ALRC encourages the Commonwealth Government to review the operation of ss 16A(2A), 16AA of Crimes Act 1914 (Cth) to ensure that they are operating as intended, and to consider repealing or narrowing the application of the provisions if necessary to the successful implementation of a statutory requirement to consider unique and systemic factors of Aboriginal and Torres Strait Islander offenders when sentencing in the NT.

Legislative form

6.108  The ALRC does not draft legislation. There has, however, been discussion about the best form for the provision to take in sentencing statutes. Some stakeholders have advocated for the statutory requirement of courts to take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples to be included in the purposes or principles of sentencing, while others consider it better placed as a sentencing factor.

6.109  For example, the Public Defender (NSW) suggested that, as the issue is exceptional and requires a specific direction to sentencing judges, the provision should form part of the purposes of sentencing.^[185] The NSW Bar Association suggested that any new provision should be introduced along with statutory recognition of the purposes of sentencing as:

• ameliorating the over-representation of Aboriginal and Torres Strait Islander peoples in custody;
• reparation for harm done by the offender;
• restoration of harmony within Aboriginal and Torres Strait Islander communities, and
• providing equal justice in sentencing decisions.^[186]

6.110  The NSW Bar Association also suggested that the statute should set out that there need not be a causal link between the factor and the offending conduct.

6.111  ALS NSW/ACT suggested the introduction of a statutory sentencing principle that recognises the following as unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples:

• the history of dispossession of land;
• the history of paternalistic attitudes and policies imposed by government; and
• removal of children.^[187]

6.112  The Law Society of WA and Legal Aid WA suggested that the provision to consider unique and systemic background factors be incorporated as a sentencing principle.^[188]

6.113  Legal Aid NSW considered that courts should be expressly required to pay particular attention to the circumstances of Aboriginal and Torres Strait Islander offenders and that this requirement should be incorporated into the sentencing factors of s 21A in the Crimes (Sentencing Procedure) Act 1999 (NSW):

The character, general background (with particular attention to the circumstances of Aboriginal offenders), offending history, age, physical and mental condition of the offender (including any cognitive or mental health impairment). ^[189]

6.114  Careful consideration of the legislative drafting of any provision will be needed to give effect to the intention to require sentencing courts to take into account unique and systemic factors of Aboriginal and Torres Strait Islander offenders. Where adopted, the provisions should be uniform across the states and territories.

6.115  The introduction of such a provision raises questions about how best sentencing courts should receive information showing the ‘necessary link’ between the collective and individual Aboriginal experience. Pre-sentence reports (PSRs) and submissions to the court by counsel for the defence can go some way, but there remains a need for courts to be able to receive objective reports that provide insightful and accurate accounts of the experiences of Aboriginal and Torres Strait Islander offenders.

6.116  The ALRC recommends that this information be submitted in the form of ‘Indigenous Experience Reports’ (IERs) in superior courts (District/County and Supreme Courts) and be able to be submitted using less formal methods in the courts of summary jurisdiction (Local or Magistrates Courts).

Summary and superior courts—incidence

6.117  Courts of summary jurisdiction usually hear matters that are less serious in nature than the superior courts. For example, in NSW the Local Court has jurisdiction to sentence an offender to a term of imprisonment of up to two years, or for five years when imposing a cumulative sentence.^[190] Courts of summary jurisdiction hear the majority of criminal matters. In 2015–16, the courts of summary jurisdiction nationally heard 97% (559,884) of all finalised adult criminal matters,^[191] of which 88% were proven guilty.^[192]

6.118  The rest of the matters, that is, matters that attract a sentence of imprisonment of more than two years (referred to as ‘indictable matters’) are heard in the superior courts. In 2015–16 this amounted to 15,971 finalised matters nationally,^[193] of which 79% were proven guilty.^[194] These matters are more serious, so the likelihood of a prison sentence on a guilty finding is increased. For example, in the courts of summary jurisdiction, 6% (30,826) of matters proven guilty received a sentence of imprisonment,^[195] with an average length of seven months,^[196] whereas in the superior courts, 68% (8,608) of those found guilty received a sentence of imprisonment,^[197] with an average length of 38 months.^[198]

Aboriginal and Torres Strait Islander defendants

6.119  It is not possible to know the number of Aboriginal and Torres Strait Islander people that come before the superior and summary courts nationally. Aboriginal and Torres Strait Islander status in court finalisation data is not collected for all states and territories.^[199] Table 6.1 below shows the number of Aboriginal and Torres Strait Islander people in court finalisations per court jurisdiction in NSW, the NT, Queensland and South Australia, and the percentage of all matters before those courts that had Aboriginal or Torres Strait Islander defendants.

Table 6.1: Matters before the courts by state and territory, jurisdiction and by Aboriginal and Torres Strait Islander status (2015–2016)

Source: Australian Bureau of Statistics, Criminal Court Statistics, Cat. No. 45130DO003_201516 (2015-2016) table 13, 14. These data exclude traffic offences. *Custodial sentence includes prison, community-based and suspended sentences.

6.120  Aboriginal and Torres Strait Islander peoples were defendants in 10% to 68% of all matters in the superior courts, and 11% to 77% of those in the summary courts. Accordingly, on average, Aboriginal and Torres Strait Islander peoples represented 26% of defendants in matters before the superior court, and 32% in front of the courts of summary jurisdiction in 2015–2016.

6.121  The available statistics do not provide data on Aboriginal and Torres Strait Islander defendants found guilty by each jurisdiction. This number would provide an indication as to how many matters would be affected by a provision to consider unique and systemic factors. Assuming that 79% of matters heard in the superior courts and 88% in the summary courts result in a finding of guilt,^[200] it can be inferred that, in those states and territories, up to 1,290 Aboriginal and Torres Strait Islander defendants in the superior courts would be affected, and 33,550 in the courts of summary jurisdiction.

The current methods for submitting information to sentencing courts

6.122  Sentencing courts do not have to comply with the same rules of evidence that trial courts do. Evidence Acts in the states and territories prescribe that, unless a court orders otherwise, the relevant Evidence Act does not apply in sentencing.^[201] The common law rules of evidence may, however, apply where there is a dispute.^[202] It is well established, for example, that in sentencing, for the prosecution to establish an aggravating factor, the onus is on the prosecution to establish it beyond reasonable doubt. For the offender to establish a mitigating factor, it need only be done on the balance of probabilities.^[203]

6.123  A sentencing court can inform itself about the offender in a multitude of ways: it can receive information through written or oral submissions regarding the characteristics and background of the defendant submitted by the parties or via reports ordered by the court. In certain matters, sentencing courts can also receive victim impact statements, which can be submitted in writing or read in court by the victim or family member.^[204]

Submissions by the parties

6.124  The court can receive any information that the court considers appropriate to enable it to impose the proper sentence.^[205] Evidence can be submitted by the defence or prosecution orally or through written submissions.

6.125  During consultations, a number of stakeholders to this Inquiry advised the ALRC that sentencing submissions made on behalf of Aboriginal and Torres Strait Islander offenders progressing through mainstream courts were often rushed. Stakeholders commented on the time constraints of the courts, and the limited time that lawyers have to prepare comprehensive information about a client’s background and community.

6.126  The Mental Health Commission submitted that some courts do not have adequate information available to consider offenders’ backgrounds, including relevant cultural and historical factors.^[206] Australian Lawyers for Human Rights suggested this gap was due to under-resourced legal aid lawyers, who did not have sufficient training or time to elicit such information, as well as due to the limited availability of interpreters.^[207]

6.127  The lack of information was considered to be a widespread problem. VALS submitted that there was little information in ‘mainstream courts’ regarding cultural backgrounds of Aboriginal and Torres Strait Islander offenders, and that there was no legislative requirement for the court to consider such information.^[208] The Human Rights Law Centre noted that it was

left to the discretion of judges and magistrates as to how (if at all) they will take into account the historical and contemporary systemic discrimination and disadvantage that contributes to the over-representation of Aboriginal and Torres Strait Islander people in criminal justice systems and to the offending of particular individuals.^[209]

6.128  VALS advised that, even in the Koori Court, where the historical impacts of colonisation and the person’s individual background are generally considered, if the Elders did not know the offender or their family, there may still be information lacking.^[210]

Pre-sentence reports

6.129  Pre-sentence reports (PSRs) are reports produced to assist ‘Judges or Magistrates to select the most appropriate sentence for offenders who have pleaded guilty to, or have been found guilty of, an offence’.^[211] PSRs have a statutory basis in all states and territories, except NSW where PSRs operate by agreement.^[212] PSRs in written form may take up to six weeks to complete, for which the matter is adjourned, and the offender is either bailed or held on remand.^[213]

6.130  PSRs are to include certain matters in relation to the offender, known as ‘pre-sentence report matters’. These include, for example: the offender’s age, medical and psychiatric history; the offender’s educational background, employment and financial histories; any prior management by corrective services and the level of compliance under management; and an assessed level of risk.^[214] PSRs may contain any other information requested by the court,^[215] including information regarding the suitability of sentence types, noting the ‘possible benefits of a particular intervention’.^[216]

6.131  The majority of statutory provisions that outline pre-sentence report matters do not identify Aboriginality or cultural background as a pre-sentence report matter at all.^[217] While some jurisdictions refer to the offender’s ‘social history and background’,^[218] only the ACT includes ‘the offender’s social history and background (including cultural background)’ as a pre-sentence matter.^[219]

6.132  Research conducted in NSW and Victoria by academics Anthony, Marchetti, Behrendt and Longman, and published in 2017, highlighted the ‘pivotal role’ PSRs have in the sentencing decision. It suggested that PSRs are ‘very influential’ to the sentencing decision to the extent that, for example, in the ACT, a court must provide reasons where it deviates from the recommendations of a PSR.^[220] The research noted the absence of information relevant to offenders’ Aboriginal and Torres Strait Islander experience in PSRs. It concluded that sentencing courts do not receive sufficient information relevant to Aboriginal and Torres Strait Islander background factors in sentencing, noting that submissions by counsel and PSRs are generally not enough.^[221]

6.133  This finding was reaffirmed by stakeholders to this Inquiry.^[222] Legal Aid ACT submitted that PSRs contain only ‘rudimentary’ information about the offence and the offender, and lack the ‘necessary depth and substance required to provide the court with a holistic, accurate picture’. The ‘routine’ format means that PSRs are ‘unable to map the full impact of inter-generational and historical trauma on ATSI offenders’. Legal Aid ACT recognised that, while the current approach of providing information to the sentencing court may satisfy the ‘interests of justice with regard to sentencing non-Indigenous offenders … with respect to Aboriginal and Torres Strait Islander offenders and particularly in light of the Bugmy decision, it requires significant revision’.^[223]

6.134  The Aboriginal Legal Services WA (ALSWA) had ‘longstanding concerns’ about the use of PSRs in WA, which, in their experience, did not ‘canvass issues of Aboriginality and systemic issues such as deprivation, intergenerational trauma and discrimination’ and, as such, were ‘rarely culturally appropriate’.^[224] In the view of ALSWA some PSRs were prepared well and provided information that may be new to the court, such as information about the offender’s prior involvement with the child protection system or experience of family violence. Critically, however, the ALSWA suggested that the reports mainly supported ‘systemic bias within the system’, as:

• interviews were often between an Aboriginal or Torres Strait Islander offender and a non-Indigenous corrective services staff member, and may even be conducted over the phone.^[225] This likely leads to mistrust and a non-productive interview where the interviewer considers the offender to be without remorse;
• there may not be an interpreter;
• the report writer may ‘cut and paste’ from previous reports on the offender; and
• in the text of the report, the report writer may present their view as fact and the offender’s comments as claims.^[226]

6.135  The ALSWA provided the following case study and commentary, which highlights some of the issues of PSRs when developed for Aboriginal and Torres Strait Islander offenders:

In 2017, the District Court sentenced A to 9 months’ imprisonment for Aggravated Burglary. For the sentencing hearing, the court had a PSR prepared by a community corrections officer (CCO) and a Psychological Report. A was in custody in a regional prison; however, the CCO who prepared the PSR was from a metropolitan office. The CCO interviewed A over the phone. The report stated that A had poor insight, was reluctant to discuss the offence and his personal history and contended that this suggested ‘potential difficulties with him engaging meaningfully with interventions that meet his cognitive and treatment needs’. The PSR was a typical deficit-focused report with constant references to his failings, ‘cognitive deficits’ and poor past compliance with community based dispositions. The Psychological Report made similar references to his ‘lack of insight’ and reluctance to discuss the offences and his background. The PSR mentioned that because his assessment was conducted by telephone it was ‘difficult to gauge physical cues which may have been utilised to encourage an open discussion’. It is concerning the author of the PSR acknowledges that it is only ‘difficult’ to gauge physical cues over the telephone—one would have thought it was impossible! What is even more alarming is that neither the CCO nor the psychologist was aware that A had significant hearing loss in both ears. Fortunately, this was known by the ALSWA lawyer, who was able to elicit significant information about A’s life and background from family members.^[227]

6.136  The Change the Record Coalition also suggested that the current mechanisms for obtaining relevant background information in PSRs was ‘unsuitable as they often do not contextualise offending in light of historical and systemic factors (including intergenerational trauma and socioeconomic disadvantage) and further fail to examine culturally safe sentencing options’.^[228] The NSW Bar Association submitted that the

absence of such information can represent difficultly for a sentencing judge that cannot be overestimated. Without such information, a sentencing judge is constrained in his/her ability to take into account material relevant to the individual being sentenced.^[229]

6.137  VALS believed that there needed to be a mandated, community-led and culturally appropriate method to obtain such information that would assist the courts in finding alternative sentencing measures to prison. The method needed to directly address the impacts of colonisation and disadvantage experienced by Aboriginal and Torres Strait Islander peoples. VALS submitted that such a process would ensure the courts are ‘playing a vital role’, not only in addressing the inequality of incarceration, but in ‘lowering prison rates for Aboriginal and Torres Strait Islander peoples’.^[230]

Moves to Gladue-style reports in Australia

6.138  Steps have been taken to provide for Gladue-style reports in Australia. These steps have varied in scope. For example, the Aboriginal Legal Service NSW/ACT are developing a ‘Bugmy Evidence Library’—a body of material containing information about the ‘social disadvantage of certain Aboriginal communities’^[231] for use as evidence in sentencing matters. According to the Law Council of Australia submission to this Inquiry, these reports will provide ‘narrative and statistical information about Aboriginal communities in NSW where the essential aim of the project is to provide background community evidence supporting an individual’s personal experience in that community, which is often of social disadvantage’.^[232]

6.139  In the NT, the Law and Justice Group’s ‘reference writing processes’ are designed to facilitate pre-court meetings with members of the Aboriginal and Torres Strait Islander community and community leaders in order to write pre-sentence recommendations in reference letters to the presiding judge. The North Australian Aboriginal Justice Agency (NAJAA) provided information on the reference letters:

These reference letters communicate important background information about the offender, including important cultural information and also provide community views on offending and where appropriate suggest alternative to jail options for sentencing. In 2017 the Kurdiji Law and Justice group extended this work to include sitting in court with the presiding judge and providing input to the court system where appropriate. Kurdiji members have reported an increase in community support since they began sitting in court with the Judge. Kurdiji members placed great emphasis on the importance and symbolic nature of Kurdiji being seen by defendants as sitting alongside the Judge (and as being respected by the Judge as a source of authority) and have spoken very positively about the possibility of Kardia (Western mainstream legal system) and Yapa (Warlpiri) laws working together.

While this current work is an important step towards making the current system slightly more culturally accountable, there are a number of limitations to this work including elders having to volunteer their time and the process largely unsupported by key agencies in the criminal justice system. In order for pre-sentence reports to be meaningful and have weight with the court, they ought to have legislative authority.^[233]

6.140  The ACT Government advised the ALRC of an intention to trial the use of ‘Aboriginal and Torres Strait Islander Experience Court Reports’ in sentencing courts in the ACT. The proposed trial is in response to a 2015ACT Standing Committee on Justice and Community Safety report, Inquiry into Sentencing in the ACT. As noted above, that report recommended that the ACT Government legislate to ‘explicitly require the courts to consider the Indigenous status of offenders’.^[234] It further recommended that the ACT Government create a specific mechanism for the ‘creation of reports similar to Gladue reports in Canada, informing courts of any relationship between an accused’s offending and his or her Indigenous status’.^[235]

6.141  The ACT Government has commissioned Legal Aid ACT to design a framework for the creation of specialised reports similar to Gladue reports in Canada. Legal Aid ACT recommended the creation of Aboriginal and Torres Strait Islander ‘Experience Court Reports’ that aimed to provide the courts with pre-sentence information about an offender’s community, family and personal circumstances and the impact of the cultural, social and historical issues confronted by Aboriginal and Torres Strait Islander peoples. The development of a trial for the Experience Court Reports is under consideration.^[236]

6.142  VALS released a discussion paper on ‘Aboriginal Community Justice Reports’ in 2017 that proposed a trial for such reports to be written by Aboriginal and Torres Strait Islander communities in Victoria. These reports are proposed to be produced when sentencing offending that may attract a jail sentence and for ‘a variety of justice scenarios, including bail, sentencing, child protection, and for young people’.^[237]

Nomenclature

6.143  There has been some discussion about how to refer to such reports in the Australian context. In Canada, they are ‘Gladue reports’. ‘Bugmy reports’ are not appropriate in Australia because, in Bugmy’s case, there was no such report. The Discussion Paper to this Inquiry termed them ‘specialist sentencing reports’, but this could indicate that the focus of the report would be on the sentence. ACT Legal Aid suggested the term ‘Experience court reports’, arguing this phrase more accurately describes the ‘purpose and nature’ of the reports.^[238]

6.144  VALS suggests using the term ‘Aboriginal Community Justice Reports’, which is the title given to the proposed trial of the reports in Victoria.^[239] Dr Thalia Anthony suggested ‘Indigenous Community Reports’.^[240]

6.145  The ALRC suggests that ‘Indigenous Experience Reports’ (IERs) accurately describes the nature of the reports, but encourages courts in each state and territory to work with Aboriginal and Torres Strait Islander organisations to determine the most suitable title for the reports in that jurisdiction.

Stakeholders to this Inquiry

6.146  The majority of stakeholders to this Inquiry supported the introduction of IERs, to operate alongside of PSRs, for Aboriginal and Torres Strait Islander offenders, arguing that IERs would provide invaluable contextual and individualised information about an offender that would further and better assist judges when tailoring a sentence for that offender.^[241]

6.147  There were some considerations about the production of such reports. These include who should author and resource IERs, as well as the kind of information that they should contain.

Independent Aboriginal authorship

6.148  It was generally agreed that corrective services should not prepare IERs.^[242] These reports should instead be prepared by an Aboriginal and Torres Strait Islander person or group, preferably with a connection to the offender’s community. At the very least, stakeholders suggested the reports should be prepared by a person with a good understanding of the offender’s particular Aboriginal or Torres Strait Islander community and history. ^[243]

6.149  Some stakeholders suggested that Aboriginal legal services would be best placed to author the reports. Others identified the need for authorship to be independent of the defence,^[244] so as to not undermine the perceived impartiality and credibility of the reports.^[245] The ALRC supports the independent production of IERs, where possible.

Content of reports

6.150  The content of an IER would be distinct from a PSR as their ‘fundamental purpose’ would be to ‘identify material facts which exist only by reason of the offender’s Aboriginality’.^[246] Broadly speaking, stakeholders acknowledged that the introduction of IERs would ‘play a vital role in bringing the entirety of complex factors that may influence Indigenous offending to the fore’.^[247]

6.151  The ALHR suggested that IERs should include information regarding ‘past trauma, past abuse, substance abuse, information as to loss of culture, and positive cultural issues’.^[248] The Community Restorative Centre suggested the reports should give family and community background, and other ‘important contextual information’, such as

intergenerational trauma pervading communities, known histories of local massacres, harsh mission life, stolen children as well as the life experiences of the accused, that may include removal from family, early school leaving, domestic and family violence.^[249]

6.152  ALSWA suggested that IERs could also include information about the offender’s experiences with corrective services and other relevant government and non-government agencies.^[250] Other suggested content included any underlying developmental or health issues, such as foetal alcohol syndrome disorders,^[251] and loss of language.^[252]

6.153  It was also suggested that IERs identify any available and appropriate alternative sentencing options.^[253] ALS NSW/ACT suggested that IERs could draw from the ‘Bugmy Evidence Project’ under development in NSW (discussed above) to provide information to a sentencing court on the background of an individual and their community, and of available community-based rehabilitation options and alternatives to custody.^[254]

Resourcing

6.154  It is difficult to estimate how many IERs would be required to be produced annually. It is estimated that, in the four states and territories itemised in Table 6.1 above, around 1,290 IERs could have been ordered by the superior courts if available during the 2015–2016 period. Nearly half of these would have been ordered in Queensland.

6.155  Stakeholders to this Inquiry were alert to the requirement for enhanced resources to support the preparation of IERs. For example, Sisters Inside noted:

If these reports were to be introduced, dedicated funding would have to be made available through Legal Aid commissions for this purpose, with the presumption that all Aboriginal and Torres Strait Islander peoples are eligible for funding if they choose to rely on a report. Aboriginal and Torres Strait Islander peoples must not languish in prisons waiting for funding for reports or for availability of report writers.^[255]

6.156  The Community Restorative Centres noted the need to fund Aboriginal legal services and community groups such as Wirringah Baiya Aboriginal Women’s Legal Service.^[256] ALS NSW/ACT suggested the resourcing model from Ontorio, Canada, where Legal Aid funds the preparation of the reports by local Aboriginal organisations. Membership on the panel requires certain levels of training and competence, and they are authorised to bill five additional hours in making a submission.^[257]

6.157  The resourcing requirements for Australia would stretch beyond the actual preparation of the report. Alternative sentencing options, support networks and appropriate training and guidelines (see below) would also need to be developed and supported.^[258] As identified by VALS, an IER model needs to be supported by ‘case management workers post-sentence, adequately resourced culturally appropriate and community-led programs, and training and support of the judiciary’.^[259] If community-led alternative sentences were not funded then the information contained in IERs would be ‘redundant’.^[260]

Arguments against the introduction of IERs

6.158  An argument against the introduction of IERs was advanced by NSW Chief Magistrate Henson, who contended that it was not the role of the court to inform itself, and that information of this type was best left for submissions by the defence:

While the entrenchment in legislation of a principle or factor that requires the sentencing court to consider the unique systemic and background factors affecting Aboriginal or Torres Strait Islander peoples might arguably have the effect of enhancing the prominence of this issue at a societal level, the practical question that remains for the court is how such a principle or factor is to be taken into account in the context of an individual case. Of course, it is not the role of the court in an adversarial criminal justice system to inform itself of such matters; once again this depends, and will continue to depend, upon the nature and substance of the submissions made on behalf of the offender.^[261]

6.159  The NSW ODPP submitted that consideration of relevant systemic and background factors was already part of the NSW sentencing process and that ‘counsel submissions, along with PSRs and any expert reports, such as that of a psychologist, do generally provide sufficient background information to NSW sentencing courts.’^[262] The NSW ODPP did, however, acknowledge that reports prepared with the assistance of someone connected to the offender’s community may add value, as this was generally missing in PSRs.^[263]

Flexible approach in courts of summary jurisdiction

6.160  It would be ideal for an IER to be produced for every matter, or even just in matters when a sentence of imprisonment was likely. The ALRC is aware, however, that resourcing and time may make it implausible to produce IERs in all, or even limited, circumstances, and so recommends that a more flexible approach be taken in courts of summary jurisdiction.

6.161  Some stakeholders considered that a flexible approach to receiving the relevant information should be taken, regardless of the jurisdiction of the sentencing court. The Human Rights Law Centre suggested that IERs should be ‘just one example of an alternative approach to ensuring courts are properly equipped to appropriately sentence Aboriginal and Torres Strait Islander offenders’. The Human Rights Law Centre emphasised the need for state and territory governments to work with Aboriginal and Torres Strait Islander representatives to determine the most appropriate way to ensure that cultural factors and systemic discrimination and disadvantage are adequately taken into account by courts.^[264] The Law Council submitted it to be ‘critical’ that Aboriginal and Torres Strait Islander legal, health and community organisations are consulted as to the best way to put information before the courts.^[265]

6.162  Other stakeholders suggested the need for the limited application of IERs. The ALSWA considered that it would be ‘cost prohibitive’ to require an IER for every criminal matter. The ALSWA suggested that such reports be a feature of courts hearing indictable matters (District/County or Supreme Courts) or where requested by magistrates in Local or Magistrates Courts, particularly when an offender may be facing prison in the lower court.^[266] The Community Restorative Centre with the Miranda Project also submitted concerns regarding the practicalities of providing an IER in Local Courts, particularly when an offender may be unrepresented. In their view, an Aboriginal Court Support service would be needed in the lower courts to prepare people on the day of appearance, with quick access to information about communities, with ‘carefully structured, sensitive questions concerning the individual’s life experiences’.^[267]

6.163  The Law Society in WA recommended the constitution of a specialised agency to provide reports, including to Magistrates Courts.^[268]

6.164  Local and Magistrates Courts handle the bulk of criminal matters in all jurisdictions. They are where most people who are in prison have been sentenced, including Aboriginal and Torres Strait Islander offenders. The ALRC considers that the volume of matters demands more flexible and responsive options. The importance of Aboriginal and Torres Strait Islander involvement is widely recognised. For this reason, the ALRC recommends partnerships that bring together governments and Aboriginal and Torres Strait Islander organisations and communities to develop mechanisms to do this. In designing ‘from the ground up’, it is more likely that the outcomes will reflect local knowledge, strengths and opportunities, and consequently deliver better outcomes.

6.165  The Judicial College of Victoria identified the need for judicial education in support of the introduction of provisions requiring sentencing courts to take into account unique and systemic background factors of Aboriginal and Torres Strait Islander offenders. It also noted the benefits of having ‘all involved in delivering justice, including the judiciary, receive cultural awareness and cultural competence education relating to Aboriginal and Torres Strait Islander people’. The College suggested that training should include material relating to the historical and ongoing impact of colonisation on Aboriginal and Torres Strait Islander peoples, identity, intergenerational trauma, in addition to education about contemporary issues such as the exposure to racism that many experience daily. It should also include cultural competence education, regarding how to work with Aboriginal and Torres Strait Islander peoples. This would involve training on modes of communication, body language, the need for and use of interpreters and related issues. Training was also required to inform the judiciary on the availability of culturally appropriate programs and services. ^[269]

6.166  Ongoing education and training of the judiciary and legal practitioners to support the introduction of provisions and IERs were widely supported by stakeholders.^[270] The ALRC considers training to be a necessary concomitant to the introduction of the recommended provision. Some examples of best-practice training are outlined in Chapter 5, with regard to the requirement to support a similar provision in bail statutes. In that chapter, the ALRC recommends the development of guidelines for use by the judiciary and legal practitioners.^[271] If developed, there would be value in also including material in support of the recommendations of this chapter regarding sentencing and Aboriginality.

5.1        Up to one third of Aboriginal and Torres Strait Islander people in prison are held on remand awaiting trial or sentence. A large proportion of Aboriginal and Torres Strait Islander people held on remand do not receive a custodial sentence upon conviction, or may be sentenced to time served while on remand. This particularly affects female Aboriginal and Torres Strait Islander prisoners, and suggests that many Aboriginal and Torres Strait Islander prisoners may be held on remand for otherwise low-level offending.

5.2        Irregular employment, previous convictions for often low-level offending, and a lack of secure accommodation can disadvantage some accused Aboriginal and Torres Strait Islander people when applying for bail. Furthermore, when bail is granted, cultural obligations to attend sorry business following a death in the family or community, or to take care of family may conflict with commonly issued bail conditions—such as curfews and exclusion orders—leading to breach of bail conditions, revocation of bail and subsequent imprisonment. This issue has continued despite existing laws and legal frameworks that enable some bail authorities to take cultural considerations into account.

5.3        The recommendations in this chapter seek to enable Aboriginal and Torres Strait Islander peoples accused of low-level offending to be granted bail in circumstances where risk can be appropriately managed.

5.4        As a means of decreasing the number of Aboriginal and Torres Strait Islander people in prison held on remand, bail laws should require bail authorities to consider issues and circumstances arising from a person’s Aboriginality when making bail determinations. Victoria introduced a model provision in 2010, which the ALRC recommends be adopted in other state and territory bail statutes.

5.5        The effect of this provision may be diminished through limited application and use by legal advocates, and deficiencies in culturally appropriate bail support services and diversion programs. For these reasons, the ALRC further recommends that state and territory governments work with relevant Aboriginal and Torres Strait Islander organisations and legal bodies to produce usage guidelines for the judiciary and legal practitioners, and to identify gaps in the provision of bail supports. Implementation of these recommendations would likely be assisted by the uptake of Aboriginal Justice Agreements, discussed in Chapter 16.

5.6        The ALRC stresses the interdependency of these recommendations, and encourages governments to consider them a holistic package for bail law reform.

The operation of bail laws and legal frameworks

5.7        A person may be held on remand following charge because they did not apply for bail, the bail authority refused bail, or because a person breached a condition of bail.

5.8        Bail laws are complex and vary between states and territories, with each having a relevant Bail Act.^[1] A general overview of the operation of bail laws across states and territories is provided below.

5.9        Bail can be determined at different times by police, magistrates, judges and, in some jurisdictions, by bail justices.^[2] These decision makers are generally termed ‘bail authorities’. Questions of bail first arise when a person is charged by police with an offence. Police can release the accused person with a Court Attendance Notice (or equivalent) to attend court, or police can release the accused person on bail. It is always a condition of police bail that the accused person attends court.^[3] Other conditions may also be imposed.

5.10     When police refuse to release the accused person or to grant bail, the police must bring the accused person before the Local or Magistrates Court as soon as possible, where the accused person can apply to the court for bail.^[4]

5.11     A statutory presumption against bail attaches to some offences. These generally include serious indictable sexual and personal violence offences, as well as weapon and terrorism-related offences.^[5] In some jurisdictions these offence categories are known as ‘show cause’ or ‘exceptional circumstances’ offences.^[6]

5.12     When an accused person successfully ‘shows cause’, or when show cause is not required, the bail authority considers whether an accused person would pose an ‘unacceptable risk’ if released on bail, and, if so, whether conditions could be imposed to mitigate that risk. When determining unacceptable risk, the bail authority generally considers whether a person is likely to: appear in court to answer bail; interfere with witnesses; harm themselves or others; or whether there is a risk of reoffending.^[7] These risks are termed ‘bail concerns’ in New South Wales (NSW).^[8]

5.13     The type of matters to be considered when assessing ‘bail concerns’ are prescribed in some jurisdictions. In NSW, for example, the type of matters to be taken into account are prescribed by the Bail Act 2013 (NSW), and include, among other things: the accused person’s background, including criminal history, circumstances and community ties; any previous history of non-compliance with court orders; the nature and seriousness of the offence; and any special vulnerability or needs the accused person has including being young, being an Aboriginal or Torres Strait Islander person, or having cognitive or mental health impairments.^[9]

5.14     In Western Australia (WA), the bail authority must have regard to the nature and seriousness of the offence; the character, previous convictions, home environment, background, place of residence, and financial position of the accused; the history of any previous grants of bail; and the strength of the evidence. The bail authority can also have regard to any other matters that are considered relevant.^[10] Similar matters are included in bail legislation in other states and territories.^[11]

5.15     Bail authorities can impose conditions that are ‘reasonably necessary’ to address any identified bail concern. Conditions imposed upon granting bail must be ‘reasonable and proportionate’ to the offence, and be no more onerous than necessary to address the bail concern.^[12] Bail conditions can require an accused person to do, or refrain from doing, certain things—such as to report to police; live at a specific address; not associate with certain people; or to obey a curfew. Bail conditions can also enforce a condition of release, for example compel an accused person to undergo drug testing.^[13] An accused person can apply to have their bail conditions varied.^[14]

5.16     Breaching a condition of bail may result in bail revocation by the court, meaning an accused person is then held in prison on remand.^[15] Breach of bail conditions is an offence in most jurisdictions,^[16] as is failure to appear to answer bail.^[17]

5.17     Some bail conditions must be confirmed or met before an accused person will be released on bail. Pre-release conditions can include the confirmation of an address or the provision of a surety.^[18]

5.18     An accused person may also apply for bail following conviction pending sentencing or an appeal.^[19]

The impact on Aboriginal and Torres Strait Islander people

5.19     Stakeholders to this Inquiry raised concerns about the effect that remand rates had on Aboriginal and Torres Strait Islander incarceration rates. For example, the Australian Lawyers for Human Rights (ALHR) observed that ‘bail and remand processes significantly contribute to the unnecessary imprisonment of Aboriginal and Torres Strait Islander people’,^[20] while the NSW Bar Association considered bail law reform to be one of the most ‘important areas requiring attention in order to reduce the incarceration rates of Aboriginal and Torres Strait Islander people’.^[21]

5.20     There has been a general upsurge in remand populations nationwide,^[22] and this has been especially pronounced for the Aboriginal and Torres Strait Islander prisoner population.

5.21     In 2016, the national Aboriginal and Torres Strait Islander remand prisoner population accounted for 30% (3,221) of Aboriginal and Torres Strait Islander prisoners, which amounted to 27% of all prisoners held on remand.^[23] By June 2017, 33% (3735) of the national Aboriginal and Torres Strait Islander prisoner population were in prison held on remand.^[24]

5.22     Aboriginal and Torres Strait Islander peoples have continued to be over-represented on remand by a factor of over 11 compared to non-Indigenous remandees since 2010—in 2016, the rate of remand for Aboriginal and Torres Strait Islander peoples was 432 per 100,000 and 38 per 100,000 for non-Indigenous people.^[25]

5.23     In 2016, Aboriginal and Torres Strait Islander people were most likely to be held on remand when accused of offences categorised as ‘acts intended to cause injury’ (42% of the Aboriginal and Torres Strait Islander remand population); ‘unlawful entry with intent’ (13%); and sexual assault (7%).^[26] The category of ‘acts intended to cause injury’ is broadly defined and can include low-level instances of offending. For example, 33% of Aboriginal and Torres Strait Islander peoples held on remand for ‘acts intended to cause injury’ were charged with a serious assault not resulting in injury^[27] and 12% for common assault. This is not to say that all Aboriginal and Torres Strait Islander people held on remand for ‘acts intended to cause injury’ were held for low-level offending: 54% in this category were held on remand for charges of serious assault resulting in injury.^[28]

5.24     In NSW, Aboriginal and Torres Strait Islander males spent an average of 44 days on remand, while Aboriginal and Torres Strait Islander females spent an average of 38 days on remand.^[29] Around 40% of Aboriginal and Torres Strait Islander defendants who were held on remand at their final court appearance in NSW in 2015 did not receive any custodial penalty on conviction.^[30]

5.25     Aboriginal and Torres Strait Islander women are a fast growing group within the remand population. For example, the Inspector of Custodial Services in WA reported that WA had seen a 150% growth in Aboriginal and Torres Strait Islander women being held on remand from 2009 to 2016, describing the statistic as ‘especially sharp and alarming’.^[31] It was reported that, in Victoria in 2012, 60% of Aboriginal and Torres Strait Islander women held on remand were released without sentence.^[32] As discussed in Chapter 11, being held in prison for even a short period of time can be disruptive and destabilising, especially for women where the ‘social as well as the financial costs of these short-term remands can be very high’.^[33]

Drivers of over-representation on remand

Bail refusal

5.26     Aboriginal and Torres Strait Islander peoples are less likely to be granted bail than non-Indigenous people.^[34] Bail refusal for Aboriginal and Torres Strait Islander peoples has been attributed to the likelihood of accused Aboriginal and Torres Strait Islander people having prior convictions. Aboriginal and Torres Strait Islander people are up to twice as likely as non-Indigenous accused people to have 10 prior convictions, and are also more likely to have prior convictions for breach of a previous court order.^[35]

5.27     The Victorian Supreme Court appeal matter of Re Mitchell [2013] VSC 59 provides an example of how prior low-level offending can affect bail determinations for Aboriginal and Torres Strait Islander people.^[36] Mitchell, a pregnant 22-year-old Aboriginal sole parent, had been charged with offences related to begging and obtaining a ‘financial advantage by deception’ because she had been travelling on the train using a children’s ticket. Mitchell was initially refused bail at the Magistrates’ Court of Victoria where that court found that, due to similar past offending, Mitchell represented an unacceptable risk of committing further offences. Mitchell had previous convictions for shoplifting, burglary, obtaining property by deception and breach of a Community Corrections Order.

5.28     In determining the appeal, theSupreme Court found that the magistrate’s conclusion that Mitchell presented an unacceptable risk of reoffending was ‘unassailable’.^[37] Nonetheless, at the time of the appeal determination, Mitchell had spent seven weeks in prison on remand—longer than any sentence she would have received for the charges. It was likely that, if not bailed, she would spend up to nine months on remand before trial.^[38]

5.29     The Supreme Court granted bail, with reference to the requirement to consider Aboriginality at s 3A of the Bail Act 1977 (Vic). The Supreme Court noted the potential to over-police Aboriginal and Torres Strait Islander peoples and suggested that charging Mitchell with obtaining financial advantage by deception for travelling on a child’s ticket was ‘singularly inappropriate’.^[39]

5.30     The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that prior failures to appear at court, and the lack of a fixed residential address and stable employment contributed to ‘Aboriginal disadvantage’ in the bail process.^[40] The report of the RCIADIC published a submission by the Queensland Attorney-General’s Department, acknowledging that high rates of ‘mental [and] physical disability, life style, communication difficulties [and] lack of education’ can lead to Aboriginal and Torres Strait Islander peoples being held on remand, not because they are attempting to ‘escape justice’, but because of the particular difficulties they can face in appearing at a court at an ‘appointed place or time’.^[41]

5.31     The observations of the RCIADIC were repeated in evidence given by the Chief Justice of the Supreme Court of Western Australia to the 2016 Senate Inquiry intoAboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services, where Martin CJ also cited mental health issues as a key reason why Aboriginal and Torres Strait Islander people were often refused bail.^[42]

5.32     The Victorian Equal Opportunity and Human Rights Commission observed that Aboriginal and Torres Strait Islander women were often denied bail due to a lack of safe, stable and secure accommodation to which Aboriginal and Torres Strait Islander women could be bailed, particularly in regional locations.^[43] Finding suitable accommodation was especially difficult for women with substance dependencies resulting in both Aboriginal and Torres Strait Islander women and non-Indigenous women being placed in custody for therapeutic reasons, designed to stabilise their addictions and remove them from unsafe environments that may include family violence.^[44]

5.33     Language barriers have been identified as another factor that can result in Aboriginal and Torres Strait Islander people being denied release on bail.^[45] In their submission to this Inquiry, ALHR identified that language barriers can negatively affect bail determinations for defendants who are unable to accurately outline their living arrangements, support networks, cultural obligations and other relevant matters to the court.^[46]

5.34     Stakeholders to this Inquiry suggested that, when there is a presumption against bail or when an accused must ‘show cause’, the obstacles to a grant of bail for an Aboriginal and Torres Strait Islander person is magnified. Some stakeholders disagreed with the ALRC’s decision not to interrogate the categories of show cause offences.^[47] For example, ALHR observed:

ALHR notes and regrets the Commission’s decision not to discuss bail presumptions in the Discussion Paper. Bail presumptions are often the decisive legislative factor in bail applications. Just as importantly, where legislation imposes a presumption against bail for a low level offence this can result in defendants spending longer on remand than they would likely serve as a sentence. For example, ALHR notes that in the Northern Territory a defendant who has a recent prior conviction for a “technical” [a breach that causes no harm to the protected person] breach of a domestic violence order and is again arrested for a technical breach will face a presumption against bail. This is so notwithstanding that, at the sentencing stage, such a defendant may stand good prospects of a very short prison sentence or a non-custodial disposition. ALHR hopes that the Commission will address this issue in its final report.^[48]

5.35     Aboriginal Legal Service of Western Australia (ALSWA) referred to the impact on Aboriginal and Torres Strait Islander accused for ‘Schedule Two’ cases, which carry a presumption against bail in WA. Schedule Two cases are matters where the accused allegedly committed a ‘serious offence’ while on bail or parole for another matter. ALSWA advised that the category of ‘serious offences’ includes conduct such as indecent assault, stealing and breaching a police order.^[49]

5.36     The Criminal Lawyers Association of the Northern Territory (CLANT) noted that amendments to the Bail Act (NT) in 2015 expanded the number of offences that triggered the presumption against bail. While recognising that this was not focus of the ALRC Inquiry, CLANT submitted that ‘the significant effect this provision has on increasing the number of ATSI people on remand cannot go unremarked’.^[50]

5.37     Legal Aid NSW, having represented 3,000 accused Aboriginal and Torres Strait Islander people in bail matters in 2016–17, was strongly in favour of removing the show cause provisions in the Bail Act 2013 (NSW).^[51] It advised that, in NSW, an Aboriginal or Torres Strait Islander person who had been bailed for a minor offence, if subsequently charged with stealing from a shop while on bail, will be bail refused unless they can ‘show cause’.^[52]

5.38     The ALRC is aware of recent reviews and ongoing monitoring of the operation of ‘show cause’ provisions in the various states and territories.^[53] Nonetheless, the ALRC accepts that the expansion of ‘show cause’ or presumption against bail categories has likely affected the Aboriginal and Torres Strait Islander remand population, and encourages states and territories to evaluate the effect of ‘show cause’ provisions on accused Aboriginal and Torres Strait Islander people when conducting their reviews.

5.39     Other issues raised by stakeholders relevant to bail refusal for Aboriginal and Torres Strait Islander accused people included bail provisions that operated to restrict multiple applications for bail following a bail refusal.^[54] It was contended that these provisions increased the number of Aboriginal and Torres Strait Islander people held on remand, and acted as a disincentive to apply for bail until the person can ‘maximise their chance of release’.^[55]

5.40     Stakeholders also drew attention to problems that exist in regional and remote areas when bail is refused by police, and the person is held in a remote police station until transported, or over the weekend, or both.^[56] When arrested in a remote area and bail is refused by police, the defendant may be held in custody until court is next sitting. Transport to court can be cumbersome and expensive. Often the accused will be granted bail by the court at the first appearance and then have to return from the court to community at their own cost. ALHR observed that this results in defendants spending longer in police custody than necessary, and that this could be avoided by the ‘provision of funding for Aboriginal legal aid lawyers to represent such defendants by phone or video link at the time of their review of the initial police bail refusal’.^[57] The NT Anti-Discrimination Commission suggested that servicing by legal advocates could be included as part of a custody notification service.^[58]

Breach of conditions of bail

5.41     When bail is granted to an Aboriginal and Torres Strait Islander person, the conditions attached to bail may conflict with an Aboriginal and Torres Strait Islander person’s cultural obligations, increasing the risk of breach and consequent imprisonment.^[59] Curfews, exclusion zones and non-association orders can ‘restrict contact with family networks and prevent Aboriginal people from maintaining relationships, performing responsibilities such as taking care of elderly relatives or attending funerals’.^[60] In the 2011 report, Exploring Bail and Remand Experiences for Indigenous Queenslanders, it was observed that compliance with ‘standard’ conditions (curfews, resident restrictions, reporting requirements and alcohol bans) was difficult for some Aboriginal and Torres Strait Islander people. The report concluded that

[f]ailure to comply with these conditions along with the stringent policing of minor breaches in some locations increased the risk of custodial remand for Indigenous defendants, with court delays then contributing to the length of time defendants remained in remand.^[61]

5.42     In their 2012 report on bail, the NSW Law Reform Commission (NSWLRC) pointed to transient culture as a further example of how Aboriginal and Torres Strait Islander culture can conflict with standard bail conditions:

For many Aboriginal people, frequent short-term mobility is a normal part of life. People may travel for a few days or a few months, usually to visit family, but also to attend funerals, cultural or sporting festivals or to access health services. Short-term travel is most common among young adults, with older people more firmly associated with a homeland and serving as a focus or base for others, particularly children. Bail processes requiring a fixed address and frequent reporting to a particular police station may conflict with these cultural practices.^[62]

5.43     The NSWLRC also noted that Aboriginal and Torres Strait Islander people may have strong historical and cultural ties to particular locations. It found that bail conditions that restrict access to ‘place’ can have serious impacts on the person.^[63]

5.44     For this reason, the NSW Equality before the Law Bench Book for the judiciary advised that it may be ‘less appropriate to attach a condition for an Aboriginal person that the person leave town, than it would be to do so for a non-Aboriginal person’.^[64] The Bench Book clearly articulated the problem:

Conditions of bail can often have a disproportionately stringent impact on Aboriginal people as, particularly in rural areas, the conditions may conflict with family and cultural obligations. Where residence or banning conditions are a condition of bail, the person released on bail will not have access to support from the community in which he or she grew up.^[65]

5.45     There are also practical considerations, especially in regional and remote communities where public transport infrastructure is lacking. Remoteness can affect a person’s ability to meet reporting requirements. Aboriginal and Torres Strait Islander people may not have driver licences, registered motor vehicles (or a car at all), or access to licensed drivers.^[66] In such cases, place and circumstance can limit compliance with certain bail conditions.

5.46     Non-compliance with conditions of bail can be inadvertent. In 2014, the West Australian Auditor General found that one in five Aboriginal and Torres Strait Islander accused people may need help understanding bail, and noted that interpreters were limited.^[67] In their submission to this Inquiry, ALHR observed how language barriers can detract from an accused person’s understanding of their bail conditions, noting that they are often explained in legalese by officers of the courts or police in a ‘time-poor’ environment. It was recommended that more interpreters be employed for this purpose.^[68]

5.47     The submission from the NSW Government advised that the majority of breaches of bail conditions by Aboriginal and Torres Strait Islander people were generally for ‘technical breaches’. For example, in 2015 in NSW, 2,945 Aboriginal and Torres Strait Islander people had a breach of bail established against them in the Local Court. Of these, 32% involved a new offence; 25% breached curfew; 17% breached reporting requirements; and 14% failed to reside in the designated location. Some breached more than one condition.^[69]

5.48     The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted that courts continue to regularly impose conditions that

fail to recognise the specific cultural and community obligations, transport difficulties, transience and frequent short–term mobility (resulting in a lack of fixed address), living in a remote or regional community, poverty, or misunderstanding the purpose of bail that likely affect one’s ability to meet strict bail conditions for Aboriginal and Torres Strait Islander people.^[70]

5.49     Stakeholders to this Inquiry stressed that bail conditions should be imposed only to address an identified risk. It was observed that non-association orders that restrict access to family networks and prevent Aboriginal people from ‘maintaining relationships, performing responsibilities or attending funerals’ rarely address a risk and can be ‘especially problematic’ for Aboriginal people.^[71] The difficulty that women with family responsibilities may have in meeting conditions was also raised.^[72] It was suggested that, to avoid an accused person being in breach and then remanded in custody, bail conditions should be kept to a ‘necessary minimum’.^[73]

5.50     Bail conditions prohibiting alcohol intake were identified as particularly problematic for Aboriginal and Torres Strait Islander peoples.^[74] Legal Aid WA suggested that alcohol bans increase the likelihood of breach, police intervention, and entry into custody for Aboriginal and Torres Strait Islander people ‘independent of whether they were likely to commit another offence or not’.^[75] The ACT Law Society further observed that conditions regarding alcohol consumption can be both unachievable and harmful to people with alcohol dependencies, noting that ‘alcohol withdrawal can be fatal’.^[76]

5.51     Pre-conditions for release on bail can also be unnecessarily or unfairly applied to Aboriginal and Torres Strait Islander accused people. Legal Aid NSW submitted that some magistrates impose sureties in the absence of any demonstrated concern that the offender will fail to appear.^[77] Imposing sureties can be particularly difficult for Aboriginal and Torres Strait Islander people to meet, especially when living remotely without employment.^[78] For Aboriginal and Torres Strait Islander people on welfare or in receipt of the cashless debit card, bail sureties can present an ‘insurmountable obstacle’ to release.^[79]

5.52     The Aboriginal Benchbook for Western Australia Courts suggests that courts in Western Australia are adept at reducing the monetary value of bail and surety undertakings to a ‘level appropriate for applicants with a low income or few assets’, and often impose other conditions, such as reporting conditions, in lieu of requiring a surety.^[80] Nonetheless, ALSWA advised that they had represented many clients who spend ‘weeks or months in custody because they are unable to raise a surety’, which is often set at $1,000 or $2,000.^[81] Sureties were also identified as an issue by the Legal Services Commission of South Australia, which raised the possibility of implementing a Community Bail Fund to pay bail amounts of up to $2,000. The bail amounts would then be recycled back through the fund when the matter concluded.^[82] ALSWA suggested that, instead of seeking a surety, the court should assess risk in relation to family, kin and community ties of Aboriginal and Torres Strait Islander accused people.^[83]

5.53     Some pre-conditions are particular to certain regions. Legal Aid WA advised the ALRC of the ‘common practice’ of some magistrates in the Pilbara to require a letter from the chairperson of an Aboriginal community that is being proposed as a place of residence to state that the accused is welcome in that community. Legal Aid WA suggested that these letters may be difficult to obtain due to time constraints and communication difficulties, resulting in the person not being granted bail. Legal Aid WA submitted that ‘this requirement has become an impediment to the granting of bail, which accused people with proposed bail addresses in non-Aboriginal communities do not experience’.^[84]

5.54     Pre-release conditions can affect a large number of Aboriginal and Torres Strait Islander people. In 2014, the Auditor General of Western Australia advised that there were over 1,600 people that had been granted bail but who were unable to meet their bail conditions in WA that year, so were held in remand until the condition could be met. At that time, over 40% of the prison population were Aboriginal and Torres Strait Islander people. The majority of people had release on bail delayed while they obtained a surety or a residential address. While 307 people who had been granted bail were unable to meet their pre-release conditions, and did not get released.^[85] The ALRC suggests that, when implemented, the bail recommendations should lower the likelihood of bail authorities imposing inappropriate conditions, including the imposition of sureties (see below).

5.55     The NSW Bar Association suggested to this Inquiry that anyone granted bail, but not released due to unmet conditions, should be brought back before the court within a maximum of three days for the court to reassess their application for bail.^[86]

5.56     There are mechanisms in place to permit or encourage bail authorities to take into account issues that arise due to Aboriginality when making bail determinations. These include legal frameworks that provide guidance to judicial decision making and statutory provisions to consider Aboriginality or culture in bail determinations, outlined below. It is clear, however, that these existing mechanisms are not sufficient to ensure bail authorities adequately consider issues relating to Aboriginality, and to decrease the rate at which Aboriginal and Torres Strait Islander people are held on remand.

Legal frameworks

5.57     Legal frameworks in place in some jurisdictions encourage bail authorities to take into account historical context and cultural practices and obligations in bail determinations. The Aboriginal Benchbook for Western Australian Courts provides context, background and direction for the judiciary in regards to bail determinations. Itsuggests, for example, that under the ‘exceptional circumstances’ requirement for bail in serious cases, the circumstances of an Aboriginal accused person may constitute ‘exceptional circumstances’.^[87]

5.58     The NSW Equality before the Law Bench Book provides guidance for bail determinations that involve Aboriginal or Torres Strait Islander people. When assessing ‘unacceptable risk’, it provides the following directives:

Aboriginal people must not be subjected to any more stringent tests in relation to bail, or any conditions attached to bail, than non-Aboriginal people. A bail condition can be imposed only for the purpose of mitigating an unacceptable risk.

Paternalism is not appropriate.

Irrespective of their housing status, Aboriginal people often have very close kinship and family ties to a particular location. Given Aboriginal kinship ties, it may also be less appropriate to attach a condition for an Aboriginal person that the person leave town, than it would be to do so for a non-Aboriginal person.

Assess bail and bail conditions not just based on police views but also on the views of the defence and respected members of the local Aboriginal community and/or the Local Court Aboriginal Client Service Specialist (if there is one) about the particular person’s ties to the community and likelihood of absconding, and about culturally-appropriate options in relation to bail conditions. Community-based support, for example, might provide as viable an option as family-based support …

Reporting and residential conditions need to be realistic and not unduly oppressive—for example, a condition banning residence in a particular town, or requiring court permission to change, may be ruled as unduly oppressive if there is a death in the defendant’s family requiring their immediate attendance in that town.^[88]

5.59     This approach has been reflected in appeal decisions of the Supreme Court of NSW. For example, in R v Brown [2013] NSWCCA 178, the NSW Court of Criminal Appeal noted that

extended family and kinship, and other traditional ties, warrant significant consideration in the determination of whether or not to grant bail. In the cases of Aboriginal accused, particularly where the applicant for bail is young, alternative culturally appropriate supervision, where available (with an emphasis on cultural awareness and overcoming the renowned antisocial effects of discrimination and/or an abused or disempowered upbringing), should be explored as a preferred option to a remand in gaol.^[89]

5.60     More recently, the Supreme Court of NSW found that lengthy periods of remand and separation from family may perpetuate a cycle of disadvantage, which could constitute ‘cause’ under show cause provisions. It also observed that bail conditions should be crafted so as to break that cycle:

During that period the applicant would in all likelihood see very little of the child if bail is refused. That is a factor which seems to me to be likely to perpetuate the cycle of disadvantage and deprivation notoriously faced in [I]ndigenous communities and, as a matter of evidence in the material before me, specifically faced in the family of this applicant. If the Court can reasonably impose conditions which are calculated to break that cycle, in my view it should. That is a strong factor in my finding cause shown.^[90]

Statutory provisions

5.61     Provisions enabling courts to take into account cultural considerations when making bail determinations for Aboriginal and Torres Strait Islander people have been introduced to varying degrees in the NT, Queensland and Victoria. In NSW, there is a requirement to consider the vulnerability of Aboriginal and Torres Strait Islander accused people. These are briefly outlined below.

New South Wales

5.62     In NSW, s 18(1)(a) and s 18(1)(k) of the Bail Act 2013 require a bail authority to consider, among other things, ‘community ties’ and any ‘special vulnerability or needs the person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment’ when assessing ‘unacceptable risk’.^[91]

5.63     The reference to ‘community ties’ in s 18(a) does not specifically mention Aboriginal and Torres Strait Islander peoples. It may, however, have particular relevance to Aboriginal and Torres Strait Islander people and be derived from the previous Bail Act 1978 (NSW) that directed courts to give consideration to the

person’s background and community ties, as indicated (in the case of an Aboriginal person or a Torres Strait Islander) by the person’s ties to extended family and kinship and other traditional ties to place and the person’s prior criminal record (if known).^[92]

Northern Territory

5.64     The Bail Act (NT) requires bail authorities to consider, among other things, any ‘needs relating to the person’s cultural background, including any ties to extended family or place, or any other cultural obligation’.^[93] The provision within the Bail Act (NT) does not specifically refer to Aboriginal or Torres Strait Islander culture.

5.65     The NT provision commenced in 2015 following a review of the Bail Act (NT). Stakeholders in that Inquiry supported the NSWLRC recommendation that bail authorities consider matters ‘associated with Aboriginal or Torres Strait Islander identity, culture and heritage, including connections with extended family and traditional ties to place’.^[94]

5.66     The application of the NT provision to Aboriginal and Torres Strait Islander peoples may be hampered by a prohibition under Commonwealth law for bail courts to consider any form of customary law or cultural practice as a reason for lessening or increasing the seriousness of the offending.^[95] However, the objective of the Commonwealth provision was to ‘prevent customary law from being used to mitigate the seriousness of any offence that involves violence against women and children’.^[96] The NT Supreme Court has found that provisions of this type did not prevent courts from considering customary law or cultural practice to: provide context for offending; establish good prospects of rehabilitation (relating to sentencing); and to establish the character of the accused.^[97] The equivalent provision relevant to sentencing in the NT is discussed in Chapter 6.

Queensland

5.67     The Queensland provision permits the court to consider, among other things, evidence from a Community Justice Group:

16 Refusal of bail

…

(2)(e) if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—

      (i)     the defendant’s relationship to the defendant’s community; or

      (ii)    any cultural considerations; or

      (iii)   any considerations relating to programs and services in which the community justice group participates.^[98]

5.68     Community Justice Groups were established in 1993 in North Queensland. There are now up to 50 such groups operating throughout Queensland. Community Justice Groups consist of Elders, Traditional Owners, and other respected Aboriginal and Torres Strait Islander community members who come together to: make cultural submissions to Magistrates Courts on behalf of accused/defendants; identify appropriate treatment and support programs; and provide assistance to Aboriginal and Torres Strait Islander peoples as they progress through the Murri Court.^[99]

5.69     Stakeholders advised the ALRC that the relevant bail provisions in NSW, the NT and Queensland were rarely used^[100] and, when used, statutory construction had limited the application and effectiveness of the provisions.^[101] NATSILS advised that the existing provisions were ‘simply too narrow or uncertain to be effective’.^[102] CLANT observed that the NT provision informed only the decision whether to grant bail, not the conditions of bail. Further, the use of the word ‘needs’ rather than ‘issues’ in the NT was likely to ‘restrict the court from considering systemic issues such as the over-incarceration of ATSI people’.^[103] Conversely, the Law Society of NSW Young Lawyers Criminal Law Committee (YLCLC) expressed concern that, in NSW, s 18(1)(k) appeared to be restricted to considerations of over-representation and the cycle of disadvantage, and did not include an assessment of ‘culture, kinship or the need to tailor bail conditions for Aboriginal people’.^[104] The reliance on the language of ‘special vulnerability’ when assessing Aboriginality was also considered objectionable by the ALS NSW/ACT.^[105]

5.70     The WA Commissioner for Children and Young People expressed support for the construction and limitations of the relevant NSW provision to the extent that it ‘focuses on factors of vulnerability or special needs, including cognitive or mental health impairment, rather than focusing on race’ stating that ‘race alone is not a ‘causal’ factor’. In the view of the Commissioner all factors related to disadvantage, other than race, should be considered in bail determinations.^[106]

5.71     Caxton Legal Centre noted the limitations of the Queensland provision, pointing to the need for a provision that permitted the court to consider cultural factors more broadly ‘without the need for reports to be submitted’ by Community Justice Groups.^[107] Caxton supported the ongoing resourcing of Community Justice Groups, while raising concerns that Community Justice Groups serviced only 25% of all accused/offenders identifying as Aboriginal and Torres Strait Islander in Queensland. It further suggested that the reliance upon participation by Community Justice Groups rendered the Queensland provision vulnerable: considerations of cultural factors by bail authorities were ‘impacted upon by both the reach of Community Justice Group program and the goodwill of incumbent State governments to adequately fund such programs’.^[108]

5.72     There was also a reported lack of engagement with the provisions. CLANT observed that the introduction of the provision in the NT was not met with the same ‘fanfare’ as the amendments to expand presumption against bail offences, introduced at the same time. It noted that the cultural consideration provision had ‘not been embraced by the profession or the judiciary in the same way’.^[109]

5.73     There was some support for the NSW provisions. NSW Chief Magistrate Henson submitted that bail law in NSW was sufficient to consider cultural issues, as the provisions already required the court to consider a list of specific matters. The extent to which issues relating to Aboriginality feature in the court’s assessment was ‘necessarily dependent upon the advocacy on behalf of the accused person’. This would remain the same whether the provision was updated or remained unamended. ^[110]

5.74     The YLCLC submitted that the NSW provision to consider ‘community ties’ (s 18(1)(a)) had been actively engaged with in bail proceedings—particularly when the Aboriginal Legal Service was acting as defence—to good effect. The YLCLC suggested that accused persons were more likely to be granted bail under the provision if they could demonstrate the support of their community, and particularly if they had the support of respected Elders. Involvement in Aboriginal and Torres Strait Islander support and cultural groups was also looked upon favourably by the court, although the YLCLC did report that Aboriginal and Torres Strait Islander support networks were not adequately considered by bail authorities.

5.75     Other NSW stakeholders were not so supportive of the efficacy of the existing legislative provisions. For example, the Public Defenders NSW advised that, in their experience, when the provision was mentioned in bail applications in NSW, it ‘rarely made a practical difference’, stating, ‘simply put, a stronger message needs to be sent’.^[111]

The Victorian provision: s 3A of the Bail Act 1977

5.76     Victoria is the only state or territory to have introduced a standalone provision that requires the court to take culture into account:

3A Determination in relation to an Aboriginal person

In making a determination under this Act in relation to an Aboriginal person, a court must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including—

(a)     the person’s cultural background, including the person’s ties to extended family or place; and

(b)    any other relevant cultural issue or obligation.^[112]

5.77     Section 3A interacts with s 19 of the Charter of Human Rights and Responsibilities Act 2006 (Vic),which provides for cultural rights, and specifically recognises that Aboriginal persons hold distinct cultural rights. Under the Charter, Aboriginal people must not be denied the right to:

• enjoy their identity and culture;
• maintain and use their language;
• maintain their kinship ties; and
• maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

5.78     Section 3A was introduced in 2010 following a Victorian Law Reform Commission (VLRC) report on bail.^[113] The VLRC recommended that bail authorities be required to take into account cultural factors and community expectations to prevent Aboriginal and Torres Strait Islander people from being remanded unnecessarily or bailed subject to inappropriate conditions.^[114] It was considered important to take cultural considerations into account in relation to all aspects of the bail determination process, including assessing unacceptable risk and the setting of bail conditions.^[115]

5.79     The VLRC recommended that the Bail Act 1977 (Vic) be amended to include an Aboriginal and Torres Strait Islander-specific provision. This was needed both to overcome discrimination, and the historical and continuing disadvantage suffered by Aboriginal people in relation to bail and to provide consistency in the application of bail law:

It is important that … cultural factors and community expectations are taken into account when making bail decisions. Otherwise Indigenous Australians may be bailed on inappropriate bail conditions which they are more likely to breach, or remanded unnecessarily contributing to their overrepresentation in custody.

Without a specific direction to decision makers in the Bail Act, there is a risk that consideration of these matters will be inconsistent and will compound the historical and continuing disadvantage faced by Indigenous Australians in their contact with the criminal justice system.^[116]

5.80     When the amendment incorporating s 3A was introduced into Parliament in 2010, the responsible Minister stated the following during the second reading speech:

The VLRC noted that Aboriginal Australians are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system. In recognition of this, the VLRC recommended that the Bail Act should contain a specific provision for accused people who are Aboriginal.

In line with this recommendation, the bill inserts new section 3A in the Bail Act. Section 3A requires a decision-maker to take into account (in addition to any other requirements in the Bail Act) any issues that arise due to the Aboriginality of an accused when making a determination under the Bail Act.

Under section 3A, a decision-maker would be required to take into account matters such as an obligation to attend a community funeral or participate in community cultural activities when imposing conditions of bail on an accused who is Aboriginal.

While the provision requires the decision-maker to take the evidence into account it does not require the decision-maker to reach a particular decision. The test for granting bail remains unchanged, requiring a decision as to unacceptable risk.^[117]

5.81     Courts have interpreted the Victorian provision to permit consideration of the over-representation of Aboriginal and Torres Strait Islander people in prison and the effects of policing practices.^[118] The Supreme Court of Victoria (where appeals regarding bail applications are heard) has, however, stressed that the provision does not operate to grant bail to an Aboriginal and Torres Strait Islander applicant who poses an unacceptable risk to community safety.^[119]

5.82     In R v Chafer-Smith the accused was required to ‘show cause’.^[120] Bail was opposed upon the ground that the accused was an unacceptable risk. The Supreme Court of Victoria was urged by the applicant to apply s 3A ‘in the light of the report of the 1991 Royal Commission into Aboriginal Deaths in Custody, the vast statistical overrepresentation of Aboriginal and/or Torres Strait Islander Australians held in custody and current overcrowding in custody’.^[121] The Court took these considerations into account, but refused bail, stating:

In the circumstances … I consider that there is a significant risk that the applicant will repeat [the] type of offending should I grant bail and should that risk become reality, the consequences may well be catastrophic. I have considered the applicant’s Aboriginality, as I must under s 3A of the Bail Act. I am obliged to take into account any issues that arise therefrom. I accept that Aboriginal Australians are very significantly overrepresented in our prisons and I consider that if this were a marginal case where a decision to grant bail or refuse it was a close run thing, then s 3A considerations may well operate to determine the application in the applicant’s favour.^[122]

5.83     In DPP v Hume the applicant’s Aboriginal kinship obligations to his mother were taken into account under s 3A. The Court determined, however, that those obligations were not sufficient to overcome the prosecution objections that the applicant represented an unacceptable risk.^[123]

5.84     In TM v AH the Court considered an application for bail by Aboriginal child aged 14 with an intellectual disability, who was required to ‘show cause’.^[124] TM was refused bail by the magistrate after receiving a custodial sentence. Application for bail was then made in the Supreme Court of Victoria, where bail was granted. In its decision, the Supreme Court of Victoria held:

I am satisfied that TM has shown cause why his detention in custody is not justified. In particular, I am satisfied that TM’s tender age, his intellectual disability, his lack of prior convictions, the requirements of s 3A of the Bail Act, the reasonable prospect that he will receive a non-custodial sentence on appeal, and on the outstanding charges, and the proposed regime put in place for his release all, in combination, compel the view that his further detention in custody is not justified.^[125]

5.85     The Supreme Court determined that the applicant was not an unacceptable risk when the conditions of bail were taken into account.^[126] Considering the applicant’s family ties, the Court remarked that ‘TM’s ties to his family and home are strong, yet he is a long way from them at the moment and has been in that situation for nearly six months’.^[127]

5.86     In Kirby v The Queen the Court granted bail after taking into account the strong family ties of the Aboriginal applicant with the local community.^[128]

5.87     The introduction of a discrete provision in the bail statutes across states and territories would require bail authorities to contextualise issues that arise due to a person’s Aboriginality when making bail determinations—including determinations when the accused must ‘show cause’—and in setting conditions, and should:

• require bail authorities to consider community supports, the person’s role in community and cultural obligations when determining risk. It permits these considerations to be balanced against the lack of otherwise permanent residency, employment and immediate family supports;
• require courts to consider any previous offending—especially low-level offending—in context, particularly where a person has experienced historical and continuing disadvantage, as in Victoria;^[129]
• require bail authorities to consider remoteness, flexible living arrangements and mobility when setting bail conditions;^[130]
• lower the likelihood of bail authorities imposing inappropriate conditions, including the imposition of sureties, that ultimately are difficult, if not impossible, to meet;
• decrease the risk that considerations of cultural practice and obligations by bail authorities will be taken into account inconsistently; and
• reduce the number of Aboriginal and Torres Strait Islander peoples in prison on remand—especially critical for women on remand, who may lose accommodation and custody of their children while in prison.^[131]

5.88     There have been calls to introduce a provision similar to that enacted in Victoria in other jurisdictions. In 2012, the NSWLRC recommended the introduction of a provision that would require consideration in bail determinations to be given to matters ‘associated with Aboriginal or Torres Strait Islander identity, culture and heritage, including connections with extended family and traditional ties to place.’^[132] It suggested that bail authorities consider the ‘strength or otherwise of the person’s family and community ties, including employment, business and other associations, extended family and kinship ties and the traditional ties of Aboriginal people and Torres Strait Islanders’.^[133]

5.89     A 2017 report into the over-representation of Aboriginal and Torres Strait Islander women in prison recommended amendments to state and territory bail legislation to ensure that the historical and systemic factors contributing to the over–imprisonment of Aboriginal and Torres Strait Islander peoples be taken into account in bail decisions. The report further recommended that consideration be given to the impact of imprisonment—including remand—on dependent children.^[134] The report noted that bail support and diversionary options linked with accommodation, designed by and for Aboriginal and Torres Strait Islander women, were also required if such legislation is to have its intended effect of keeping Aboriginal and Torres Strait Islander women out of prison on bail.^[135] This reflected the observations of the Victorian Equal Opportunity and Human Rights Commission in 2013,^[136] and was also reiterated by the Law Institute of Victoria in 2017.^[137]

5.90     The Victorian provision goes further than the provisions in NSW and the NT, and places a different emphasis on the evidence than the Queensland provision, which requires a submission from a Community Justice Group. Section 3A is prescriptive, requiring the court, rather than permitting the court (as in Queensland), to consider issues related to Aboriginality,^[138] and wide enough to be of broader application and to include considerations of appropriate bail conditions.^[139]

5.91     Section 3A was supported in a 2017 Victorian bail review, which reported widespread stakeholder support for the provision in Victoria.^[140]

5.92     Submissions to this Inquiry overwhelmingly supported the proposal that state and territories adopt a provision similar to s 3A.^[141] Bench books and practice notes were seen to be important, but insufficient to address the issues and to provide for consistency.^[142] The Victorian provision was seen as a way to strengthen bail laws for accused Aboriginal and Torres Strait Islander peoples.^[143] It was considered that s 3A would fill the gap in jurisdictions that currently do not have a statutory requirement to consider issues relating to a person’s Aboriginality, and be a better option for those that do.^[144] Legal Aid ACT suggested that the ‘benefits’ of the Victorian provision ‘were clear’:

In the first instance, it would likely aid the removal of lingering (if inadvertent) structural biases, promoting a more responsive and equitable system for ATSI offenders. Courts would be required to turn their minds to the diverse cultural institutions and community configurations that exist to support and condemn ATSI offenders, and consider these relevant to other Bail Act requirements. Far from being a race based ‘bonus’ card, the provision’s aim would be to provide accurate insight and a more complete understanding of the risks and particularities relevant to the defendants at hand.^[145]

5.93     The Chief Magistrate of the Local Court of NSW and the Institute of Public Affairs (IPA) did not support the adoption of s 3A.^[146] The Chief Magistrate suggested that the existing provisions in NSW were adequate.^[147] The IPA expressed support for approaches that promote formal, not substantive, equality before the law. The IPA suggested that reform should focus on improving the ability of Aboriginal and Torres Strait Islander peoples to ‘interact with the law’ through services such as interpreters, rather than the creation of a ‘parallel system’ through legislative amendment or the introduction of ‘culturally appropriate’ criminal justice responses. It was the view of the IPA that bail authorities should assess the same considerations for everyone when making bail determinations.^[148]

5.94     Others supported adoption of s 3A, with amendments.^[149] For example, ALHR supported replicating s 3A with the insertion of additional words:

In making a determination under this Act in relation to an Aboriginal person, a court must take into account (in addition to any other requirements of this Act) any issues that arise due to the person’s Aboriginality, including—

(a)     the person’s cultural background, including the person’s ties to extended family or place, residence in a remote location or locations, and cultural obligations; and

      (b)    any other relevant cultural issue or obligation.^[150]

5.95     The ALHR suggested that express reference to location may address certain issues relating to remoteness and conditions of bail, including the possibility that the community may live more ‘itinerate lives’ due to family networks, and experience ‘geographically dispersed cultural commitments, weather extremes that render remote communities uninhabitable or inaccessible for parts of the year, and other exigencies of very remote living’.^[151] Accused Aboriginal and Torres Strait Islander people may also have difficulty complying with bail conditions requiring strict confinement to a particular community or area, particularly to complying with electronic monitoring conditions. Conversely, electronic monitoring may not be available in regional and remote areas, disadvantaging Aboriginal and Torres Strait Islander people in those areas from being granted bail. It was the view of the ALHR that lack of access should be a factor that the bail authority can take into account.^[152]

5.96     It was further suggested that other amendments to s 3A should:

• include reference to a person’s age;^[153]
• provide ‘culture’ and ‘background’ as separate considerations (rather than the requirement to consider a person’s cultural background);^[154] and
• explicitly state that courts are to consider the relevant matters when determining whether the person will reach bail and when attaching conditions to that bail.^[155]

5.97     The ALRC recommends the adoption of provisions that mirror s 3A in all states and territories. There may be opportunity for state and territory governments to work with relevant Aboriginal and Torres Strait Islander groups and representatives to review the drafting and scope of s 3A, with an eye to further clarify and improve its operation.

5.98     The ALRC is alert to fiscal constraints and time pressures that a properly instituted s 3A provision could impose on legal advocates and the criminal justice system. While the ALSWA supported the introduction of such a provision in WA, it noted the need for Aboriginal and Torres Strait Islander legal services and Aboriginal language interpreter services to support the proper presentation of issues relating to an accused person’s cultural background and obligations.^[156] NATSILS further commented that Aboriginal services, including legal and interpreter services, would need to be resourced to research and provide relevant matters to the court.^[157]

5.99     For a s 3A type provision to operate successfully, it is necessary that such a provision be supported by legal frameworks. As noted by Victorian Legal Aid, the provision does not operate ‘in a vacuum’.^[158] The provision needs to be understood by those that administer it, and there needs to be adequate culturally appropriate and safe services and programs that Aboriginal and Torres Strait Islander people can access while on bail, when needed.

5.100  The ALRC recommends that the adoption of an equivalent s 3A bail provision by states and territories be supported by both strong guidelines on use and the provision of bail support programs and services.

The provision of guidelines

5.101  Stakeholders have told the ALRC that s 3A has been underutilised,^[159] and that this underutilisation had contributed to s 3A having little impact on remand numbers in Victoria.^[160]

5.102  The Victorian Aboriginal Legal Service (VALS) reported that s 3A has been narrowly interpreted by the court to apply to setting conditions, such as providing for multiple residential addresses and attending funerals, but not to the determination of risk and whether to grant bail.^[161] VALS submitted that some members of the legal profession were not adept at posing the right questions and recognising issues that may arise due to a person’s Aboriginality. The number of Aboriginal and Torres Strait Islander people, especially women, still held on remand indicated that the provision was not well understood.^[162] Dr Thalia Anthony submitted that s 3A has had an ‘equalising effect on bail outcomes’ for Aboriginal and Torres Strait Islander peoples, but that the benefit only arose when lawyers who sought to rely on the provision made detailed submissions on the relevance of the person’s Aboriginal background to the Court.^[163]

5.103  The Law Institute of Victoria has previously recommended further guidance and associated training for Victoria Police, court registrars, magistrates and bail justices on cultural considerations, to be developed in partnership with the Victorian Equal Opportunity and Human Rights Commission.^[164]

5.104  In their submission to this Inquiry, VALS supported the delivery of ‘cultural sensitivity training and guidance’ by VALS in partnership with the Law Institute of Victoria and the Victorian Equal Opportunity and Human Rights Commission to police, registrars, magistrates, bail justices and legal practitioners in Victoria.^[165] Building better skills to deal with s 3A was also supported by Victoria Legal Aid, who observed that ‘the consideration of an individual’s Aboriginality does not exist in a vacuum, and requires understanding and skill across all involved in the determination of bail’. This requires ‘extensive cultural awareness education’ for legal advocates, prosecutors, and bail authorities in making bail determinations.^[166]

5.105  The Judicial College of Victoria suggested that education developed in partnership with the ‘Victorian Aboriginal and Torres Strait Islander Community’ was needed specifically to guide judicial officers on how and when to refer to s 3A, as well as general Aboriginal cultural awareness education, which would operate to ensure that ‘bail authorities are aware of the cultural issues it refers to’.^[167]

5.106  The experience in Victoria raises the issue of the proper application of s 3A provisions in Victoria, and the potential application of mirror provisions in other states and territories. For example, the NSW Bar Association—who ‘strongly’ supported the introduction of the provision in NSW—identified there to be a ‘significant risk’ that the provision would simply be given ‘lip service’ and make no practical difference to the application of bail law in NSW.^[168] The YLCLC observed that s 3A was not always raised when it was appropriate to do so, indicating that, for other states and territories, the ‘existence of the provision does not guarantee that it will be used’.^[169]

5.107  NATSILS supported further training of judicial officers to give appropriate consideration to information regarding a person’s culture and background. It suggested that training should be developed and led by Aboriginal and Torres Strait Islander organisations.^[170] The Law Council of Australia suggested that training and material should go beyond just ‘cultural awareness’ and should ‘explore the modern manifestations of historical factors and highlight the social, political and economic position of Indigenous Australians in the context of offending behaviours’.^[171]

5.108  The ALRC considers training, especially when developed and delivered by Aboriginal and Torres Strait Islander organisations, to be essential to building the necessary understanding of Aboriginal history and culture, and to place some offending in context. The RCIADIC recommended judicial training in 1991:

That judicial officers and persons who work in the court service and in the probation and parole services and whose duties bring them into contact with Aboriginal people be encouraged to participate in an appropriate training and development program, designed to explain contemporary Aboriginal society, customs and traditions. Such programs should emphasise the historical and social factors which contribute to the disadvantaged position of many Aboriginal people today and to the nature of relations between Aboriginal and non-Aboriginal communities today. The Commission further recommends that such persons should wherever possible participate in discussion with members of the Aboriginal community in an informal way in order to improve cross-cultural understanding.^[172]

5.109  Broad judicial cultural awareness training has occurred to some extent—the ALRC notes, for example, the education provided to the NSW judiciary through the NSW Judicial Commission’s Ngara Yura Program.^[173]

5.110  The ALRC supports further training for all criminal justice participants, but for a s 3A type provision to be successfully supported, there is a need to go further. Where s 3A provisions are adopted, there exists a concurrent need for well constructed written guidelines for criminal justice participants, including the judiciary.

5.111  It is desirable that the application and operation of s 3A type provisions be consistent within and across the states and territories.^[174] For this reason, the ALRC suggests that guidelines should be written by relevant national legal bodies, working with Aboriginal and Torres Strait Islander organisations. There are bodies that are well placed to produce such guidelines. They may include, for example, the Australasian Institute of Judicial Administration, which produced the National Domestic and Family Violence Bench Book to provide background knowledge and research, and practical guidelines for courtroom management aimed at harmonising the treatment of domestic violence cases across jurisdictions.^[175] This approach could make a good model for a nationally consistent approach to s 3A type provisions.

5.112  Other appropriate bodies to develop guidelines could include the Law Council of Australia; and coordinated responses from Directors of Public Prosecutions, Police Commissioners, and Attorneys-General. Courts could develop practice directions.

5.113  The ALRC does not make any recommendation as to the content of s 3A guidelines, but notes the Judicial College of Victoria recommended that cultural awareness and cultural competence education for judicial officers should include:

• background information regarding the historical and ongoing impact of colonisation on Aboriginal and Torres Strait Islander people;

• an explanation of intergenerational trauma;

• contemporary issues such as daily exposure to racism;

• cultural competency information about modes of communication, body language, the need for and use of interpreters, and related issues aimed at improving cultural safety in court; and

• information about culturally-appropriate programs and services that support Aboriginal and Torres Strait Islander people who are on bail, community-based sentences or parole.

5.114  The College emphasised the need for all education to have been developed and delivered with Aboriginal and Torres Strait Islander communities, noting the need for a localised approach in order for judicial officers to ‘understand the specific issues affecting those who come before their particular court’.^[176]

5.115  Relating specifically to s 3A, stakeholders to this Inquiry have further suggested that bail authorities be directed to limit their discretion so that, other than in exceptional circumstances, bail authorities preclude:

• the possible repetition of minor offences from their considerations of community safety;^[177]
• refusal of bail due to the unavailability of adequate accommodation; and
• the imposition of certain bail conditions such as curfews and non-association orders.^[178]

The provision of bail support programs

5.116  A provision requiring consideration of culture, even with guidance, may not be enough to facilitate a grant of bail where a person requires support.^[179] Aboriginal and Torres Strait Islander people may still be refused bail because they lack access to appropriate accommodation or have little to no support in the community—rendering them a ‘bail risk’. The provisions need to be supported by ‘practical solutions and alternatives to refusal, such as bail hostels’.^[180] As the YLCLC noted, the effect of s 3A provisions would be ‘diminished without available culturally appropriate bail supports and diversion options for Aboriginal and Torres Strait Islander peoples, undertaken in concert with Aboriginal and Torres Strait Islander people’.^[181]

5.117  There are some services, but more options are needed to support Aboriginal and Torres Strait Islander people to be granted bail and to comply with bail conditions, including bail diversion options and bail supports.

5.118  Bail support for Aboriginal and Torres Strait Islander people generally takes three forms:

• services that can support Aboriginal and Torres Strait Islander people to be granted bail and to meet the conditions of their release;
• culturally appropriate programs; and
• mainstream bail diversion programs.

5.119  Services that can support Aboriginal and Torres Strait Islander peoples to be granted bail and meet the conditions of their release usually constitute informal networks or services delivered by non-government organisations. For example, in Queensland, Community Justice Groups may appear with the person in court, and provide informal support and link-ups to services for Aboriginal and Torres Strait Islander people released on bail.^[182] This type of support can be especially critical for women who may be at risk of losing children or accommodation if refused bail and held on remand.^[183] Examples of networked support services specifically for women include theMiranda Project in NSW, Sisters Inside in Queensland, and the Koori Women’s Diversion Program in Victoria.^[184]

5.120  There are other relevant bail support programs. The NSW Government advised of the upcoming Dubbo Aboriginal Bail Project that looks to, among other things, link accused people to community support services. It also advised of the 16-week Aboriginal Court Diversion and Bail Support Program that operates out of Campbelltown Local Court for people with complex mental health and or drug and alcohol concerns and under which they have experienced no breaches of bail.^[185]

5.121  The NT Government submission to this Inquiry spoke of ‘Alternative to Prison Models’, which are currently under development in the NT. This is to include supported bail accommodation and other bail diversion options, such as ‘saturated intense rehabilitation’ which is done ‘on country’.^[186]

5.122  The ACT Government advised this Inquiry of its ‘bail support trial’, which produces information using ‘info graphics’ to help improve understandings of bail conditions and develops ‘individual support plans’.^[187]

5.123  Aboriginal and Torres Strait Islander people who enter a guilty plea in the Local or Magistrates Court may also be able to enter culturally appropriate programs that aim to address offending behaviour. These include the Balund-a (Tabulam) diversion program in northern NSW, where staff work with Aboriginal and Torres Strait Islander Elders to provide cultural programs to male Aboriginal offenders in a rural setting.^[188]

5.124  There are also specific bail diversion programs for Aboriginal and Torres Strait Islander people with alcohol dependencies, such as the Queensland Indigenous Alcohol Diversion Program, which may be entered before or after the entering of a plea. The Western Australia Indigenous Diversion Program is available on referral for people with substance use who have entered a plea of guilty in some regional areas in WA.^[189] This program is available to people who would have been granted bail, and would otherwise be expecting a fine or community-based order on sentencing. Victoria has places in residential rehabilitation centres specifically to divert Aboriginal and Torres Strait Islander women from remand.^[190]

5.125  Aboriginal and Torres Strait Islander people can also be diverted into mainstream bail diversion programs from the Local or Magistrates Court. In Victoria, for instance, the Court Integrated Service Program (CISP) is available on referral from the Magistrates’ Court regardless of the entry of a guilty plea, and includes the Koori Liaison Officer program. CISP provides case management and entry into services and accommodation for all jurisdictions of the Magistrates’ Court.^[191] This program received support in the submission from VALS, who reported good outcomes using this service for their clients, advising that Aboriginal people feel safer accessing services from Aboriginal organisations. VALS recommended expanding Koori Case Managers.^[192]

5.126  Other mainstream bail diversion programs from the Local or Magistrates Court can provide services for Aboriginal and Torres Strait Islander peoples. However, these are not necessarily developed to be culturally appropriate or culturally safe. These programs include drug and alcohol intervention bail support programs, and early mental health interventions.^[193] In 2009, 19% of participants in the NSW Magistrate Early Referral into Treatment (MERIT) program were Aboriginal or Torres Strait Islander people, and MERIT was identified by the Productivity Commission as a program that can work to decrease repeat offending by Aboriginal and Torres Strait Islander people.^[194]

5.127  While there are many programs currently in place, all stakeholders to this Inquiry who submitted their views on bail programs supported the proposal for state and territory governments to work with relevant Aboriginal and Torres Strait Islander organisations to identify gaps in the provision of bail support programs to support Aboriginal and Torres Strait Islander people on bail.^[195] As noted by ALS NSW/ACT, ‘Aboriginal and Torres Strait Islander organisations are the most valuable source of information on service gaps for Aboriginal and Torres Strait Islander people. This includes local organisations and relevant organisations’.^[196]

5.128  ALSWA suggested that the best way to provide culturally appropriate bail support and diversion was to ‘develop and establish Aboriginal-run programs that provide holistic, flexible and individualised support and assistance’. ALSWA put forward their Youth Engagement Program as a model. This program has three Aboriginal diversion officers who work with young people appearing at court. Support provided by the Aboriginal diversion officers includes: accommodation assistance; referrals to programs; transport assistance; reminders for court and other appointments; mentoring; and liaison with agencies. The diversion officers work onsite at the Perth Children’s Court and conduct outreach services.^[197]

5.129  Legal Aid WA also submitted that diversion programs, especially for young people, needed to be culturally appropriate—not just a ‘modified version of what is in place for non-Aboriginal children’. Local communities and Elders need to be involved in the design and operation of programs.^[198]

5.130  VALS provided a number of recommendations relevant to creating consistent and flexible bail diversion programs for Aboriginal and Torres Strait Islander peoples. These included:

• programs that address the underlying causes of offending behaviour such as drug and alcohol programs should be used;
• diversion should be monitored and people unable to comply should be given second opportunities and support;
• magistrates should have the final approval of diversion programs, and lawyers should be able to make submissions on diversion;
• judicial training should be ongoing;
• the offence types eligible for diversion should be expanded;
• the conditions attached to diversion should be relevant and appropriate to the offending behaviour; and
• Magistrate Courts should be linked in with Aboriginal and Torres Strait Islander organisations that can provide bail programs and support.^[199]

5.131  Best-practice principles were identified by the Australian Institute of Criminology in a literature review of bail support programs in 2017.^[200] The review was not specific to bail support programs for Aboriginal and Torres Strait Islander peoples, and focused on programs for young people. Nonetheless, the review found that each state and territory ran at least one ‘program or service to support people on bail—either directly, to allow the courts to grant bail, or to provide treatment and other services to defendants on bail’.^[201] Best-practice programs were:

• voluntary: participants are therefore motivated to engage in treatments;
• individualised and holistic: responsive to the criminogenic needs of the participant;
• timely: available immediately upon bail being granted;
• collaborative: using interagency approaches;
• supportive: prioritised support over supervision;
• familiar: locally based; and
• evidence based: based on sound guidelines and processes.^[202]

Bail hostels and accommodation options

5.132  One of the key obstacles to grants of bail for Aboriginal and Torres Strait Islander people identified by stakeholders was a gap in accommodation services, especially for women. This has previously been noted by the Victorian Equal Opportunity and Human Rights Commission^[203] and the Law Institute of Victoria, who recommended expanding culturally and gender appropriate housing so that it may support a greater number of individuals,^[204] including services for female Aboriginal and Torres Strait Islander accused and their children.^[205] The Victorian Equal Opportunity and Human Rights Commission identified that residential facilities for Aboriginal and Torres Strait Islander women with appropriate supervision, wraparound services, mentoring programs and access to their children are critical to the successful completion of bail conditions.^[206]

5.133  The need for appropriate accommodation options for Aboriginal and Torres Strait Islander peoples seeking release on bail was reiterated by many stakeholders to this Inquiry.^[207]

5.134  Traditional bail hostel models have been problematised for use in Australia: there has been a hesitancy to house together people who may have challenging behaviours and needs, and to disturb neighbourhoods.^[208] Nonetheless, South Australia has established a bail hostel, and ALS NSW/ACT submitted that bail houses can

provide a safe, supportive, and supervised short-term housing arrangement for an individual who is eligible for bail, but may not be granted bail due to a lack of suitable and stable accommodation. Bail houses can provide a bail address for the full-duration of bail, or can act as an initial form of accommodation until other suitable and stable accommodation can be found.

Bail houses can also prevent or reduce breaches of bail conditions. Bail conditions frequently impose a ‘reside as directed’ condition on an individual. In NSW, for example, courts can impose a condition ‘requiring the accused person to reside at the relevant accommodation while at liberty on bail’ under s. 28(6)(a) Bail Act 2013 (NSW). This can be a difficult condition for Aboriginal people where an individual is required to reside in unsuitable accommodation.^[209]

5.135  Accommodation needs differ from area to area—the breadth of what may be needed was reflected in the range of suggested models submitted by stakeholders. VALS recommended gender and culturally appropriate accommodation and that other support services be expanded for Aboriginal and Torres Strait Islander peoples.^[210] The NSW Bar Association and Legal Aid WA advocated appropriate funding of bail houses or non-custodial remand centres as alternatives to remand custody.^[211] The Queensland Law Society sought the immediate implementation of emergency accommodation services, prioritising regional and remote areas.^[212] NAAJA advised this Inquiry that there were no ‘culturally appropriate bail support programs available for people who require suitable accommodation to secure bail’ in the NT, in remote or in metropolitan areas.^[213] The Legal Services Commission of SA noted the difficulty of finding suitable accommodation in metropolitan areas, especially if the person is ‘far from country’. To fill this gap, the Legal Services Commission suggested that culturally appropriate bail hostels, modelled on the bail hostel in SA, though run by Aboriginal and Torres Strait Islander communities and organisations, were needed.^[214]

5.136  The Law Council of Australia and Legal Aid WA suggested that culturally appropriate hostels should be modelled on the UK ‘Approved Premises’ model, whereby accommodation is provided along with supervision, rehabilitative services, drug and alcohol testing. It was further suggested that these hostels could be used by people transitioning out of prison or released on parole, noting the connection between homelessness and re-incarceration.^[215]

5.137  ALS NSW/ACT preferred the ‘Bail Supportive Housing Program’ from Ontario Canada, noting the need for specific housing for Aboriginal and Torres Strait Islander people. The key features of the Canadian model include: 24-hour support and supervision; programs such as life-skilling and referral to counsellors and housing agencies; dedicated Indigenous staff including an Aboriginal Bail-Program Supervisor, who also provides outreach services to community.^[216]

5.138  The ALRC considers that governments should consult with Aboriginal and Torres Strait Islander organisations to identify local solutions for bail accommodation and best-practice elements of bail accommodation models employed elsewhere.

5.139  Other identified gaps in service provision to support a grant of bail for Aboriginal and Torres Strait Islander have included:

• services in support of Aboriginal and Torres Strait Islander accused people with cognitive or mental impairment;^[217]
• male behavioural change programs. VALS specifically noted an undersupply of men’s behavioural change programs, necessary for those accused of family violence who wish to be granted bail;^[218]
• cognitive behavioural therapy options in regional areas. VALS again advised the ALRC that, in regional Victoria, there remains a ‘critical undersupply of culturally specific therapeutic services’. This makes grants of bail difficult to achieve, especially where the accused must ‘show cause’ in bail applications;^[219] and
• rehabilitation programs.^[220]

5.140  As with bail accommodation, the ALRC recommends that governments work with local Aboriginal and Torres Strait Islander organisations to identify and rectify gaps in service provision.