1.1 This Inquiry has focused on the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system, a situation that the then Attorney-General of Australia, Senator the Hon George Brandis QC, described as a ‘national tragedy’. His Honour Judge Matthew Myers AM was appointed as ALRC Commissioner to lead the Inquiry.
Terms of Reference
1.2 The ALRC was asked in the Terms of Reference for this Inquiry to consider laws and legal frameworks that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander peoples in custody. Under the Terms of Reference, ‘legal frameworks’ encompass police, courts, legal assistance services and prisons. The ALRC was also asked to consider a number of factors that decision makers take into account when deciding on a criminal justice response, including community safety, the availability of alternatives to incarceration, the degree of discretion available in decision making and principles informing decisions to incarcerate. The incarceration of Aboriginal and Torres Strait Islander women was specifically identified as an area for consideration.
1.3 The ALRC was asked to consider laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples’ offending including, but not limited to, laws that regulate the availability of alcohol, driving offences and unpaid fines and differences in application of laws across states and territories along with other access to justice issues.
1.4 The reference provided to the ALRC essentially asked ‘what laws and legal frameworks should be introduced or amended so as to reduce Aboriginal and Torres Strait Islander incarceration’. The Report, and the recommendations, set out practical measures that should be undertaken to achieve this outcome.
1.5 As part of the Inquiry process, the ALRC undertook a wide ranging consultation process to gain an understanding of the complex and often intergenerational context in which Aboriginal and Torres Strait Islander peoples are incarcerated. The ALRC conducted 149 consultations with key stakeholders across Sydney, Dubbo, Bourke, Brisbane, Perth, Alice Springs, Darwin, Adelaide, Melbourne, Cairns and the Torres Strait, and New Zealand. The Inquiry also benefited from the many insights and experiences that were provided in 121 public and six confidential submissions made in response to a Discussion Paper published by the ALRC on 19 July 2017. These consultations and submissions, together with other research, including earlier reports and Commissions of Inquiry, have informed the recommendations for reform in this Report.
1.6 The ALRC sincerely thanks the many stakeholders who have contributed to the Inquiry, either by consultation or submission. Consultation lies at the heart of the ALRC process as a hallmark of best practice law reform, and the ALRC is extremely grateful for the generous, thoughtful and insightful contributions of our Inquiry stakeholders to the evidence base underpinning our recommendations.
1.7 In keeping with usual ALRC practice, an Advisory Committee was constituted for the period of the Inquiry. The Committee met on three occasions during the course of the Inquiry: on 20 March 2017, 5 June 2017, and 20 November 2017. A list of Advisory Committee members is included at the front of this Report. While ultimate responsibility for the recommendations lies with the Commissioners of the ALRC, Advisory Committee members provide quality assurance in the consultation and research process, assist in the identification of key issues, and contribute to the determination of the final recommendations. The ALRC acknowledges the considerable contribution made by the Advisory Committee members, our part-time Commissioners, and expert readers and is extremely grateful to them for voluntarily providing their time and expertise.
1.8 Implementation of the recommendations in this Report will reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander people and improve community safety. These recommendations will:
- promote substantive equality before the law for Aboriginal and Torres Strait Islander peoples;
- promote fairer enforcement of the law and fairer application of legal frameworks;
- ensure Aboriginal and Torres Strait Islander leadership and participation in the development and delivery of strategies and programs for Aboriginal and Torres Strait Islander people in contact with the criminal justice system;
- reduce recidivism through the provision of effective diversion, support and rehabilitation programs;
- make available to Aboriginal and Torres Strait Islander offenders alternatives to imprisonment that are appropriate to the offence and the offender’s circumstances; and
- promote justice reinvestment through redirection of resources from incarceration to prevention, rehabilitation and support, in order to reduce reoffending and the long-term economic cost of incarceration of Aboriginal and Torres Strait Islander peoples.
1.9 Reduced incarceration and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system will, in turn, improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples.
Historical descriptions of Aboriginal and Torres Strait Islander peoples
1.10 In discussing both the recent and historical context in which Aboriginal and Torres Strait Islander peoples are incarcerated, the ALRC has quoted past language and descriptors of Aboriginal and Torres Strait Islander peoples. The ALRC considers the use of these descriptors is no longer appropriate or acceptable. The ALRC has quoted from a number of superior court judgments, as well as historical policies and legislation that referred to Aboriginal and Torres Strait Islander peoples as “Aborigines”. This descriptor is regarded by many within the Aboriginal and Torres Strait Islander community as unacceptable, and a reminder of the way in which Aboriginal and Torres Strait Islander peoples were treated pursuant to policies such as the Aborigines Protection Act 1909 (NSW). The ALRC determined not to alter the original text of the quotes contained within this Report as such language is demonstrative of the attitudes and context in which Aboriginal and Torres Strait Islander peoples have historically been described in Australian society.