2.107 While this Inquiry focuses on Aboriginal and Torres Strait Islander incarceration rates, it is important to recognise that Aboriginal people and Torres Strait Islander people have significantly different histories and culture. Dr Anna Shnukal has observed that, ‘Torres Strait Islanders are not mainland Aboriginal people who inhabit the islands of Torres Strait. They are a separate people in origin, history and way of life’.
2.108 The Torres Strait Islands, now part of Queensland, consist of 18 island communities and five traditional island clusters. The Torres Strait is situated between the northeast tip of Cape York peninsula, and the southern coast of Papua New Guinea and covers an area of approximately 48,000 square kilometres.
2.109 The 2016 Census recorded 32,344 people who identified as being of Torres Strait Islander origin only across Australia. Approximately 65% resided in Queensland, while 11% (3,595) resided on the Torres Strait Islands. A further 12% (503) people residing in the Torres Strait Islands identified as being of both Aboriginal and Torres Strait Islander origin and 26,767 people within mainland Australia identified as being ‘both Aboriginal and Torres Strait Islander’.
History of European contact with the Torres Strait
2.110 European contact with the Torres Strait began in 1606, when Luis Vaez de Torres navigated the Strait on the way to Manila. Throughout the following 160 years there were contacts between Islanders and Europeans, including for trade, but it was not until the 1860s that Europeans commenced a permanent presence in the Torres Strait, following the identification of commercially viable marine industries, primarily bêche-de-mer and pearling.
2.111 In 1871, Christian missionaries and teachers from the London Missionary Society arrived in the Torres Strait. The introduction of Christianity, referred to as ‘The Coming of the Light’, had a significant and lasting impact on the people and the region, and, by the end of the nineteenth century, the majority of Torres Strait Islanders had adopted Christianity.
2.112 In 1872, Queensland annexed the islands up to 60 miles from the coast of Cape York, and the majority of the remaining islands in the Torres Strait were annexed to Queensland in 1879. Professor Jeremy Beckett has observed that the Queensland Government ‘had little interest in the Islanders themselves, leaving them to the care of the London Missionary Society’.
2.113 In 1907, Torres Strait Islander people were made subject to the protectionist legislative regime that applied to Aboriginal people in Queensland and extensively regulated their lives. In other areas of Queensland, this involved relocation of much of the Aboriginal population to reserves. However, large scale relocation did not occur in the Torres Strait:
there was no need for relocation: the island communities were already isolated and had already made their adaptation to the new order; moreover, there was a market for their labour, which, combined with subsistence production, could make them self-supporting.
2.114 The Queensland Government did impose a number of controls on the Torres Strait Islander people, including holding workers’ earnings on their behalf and limiting access to retail outlets, ‘justified on the grounds that Islanders were incapable of managing their affairs and must be taught thrift’. However, the administrative regime on the Torres Strait from 1899 also included two or three elected councillors who were Torres Strait Islander people.
2.115 In 1936, about 70% of the Torres Strait Islander workforce went on strike for nine months, protesting government interference in wages, trade and commerce, and calling for the lifting of curfews, the removal of a permit system for inter-island travel, and the recognition of the Islanders’ right to recruit their own boat crews. This strike resulted in the government retaining control of Islander people’s employment, earnings and consumption from Thursday Island, but leaving communities to run their own affairs on the other islands. Beckett has observed that: ‘Under this new regime, the Islanders, having only restricted contact with the outside world, were able to develop a rich creole culture around the church and council’.
2.116 In 1938, the Queensland Government agreed to the request of Torres Strait Islander people to be recognised as a distinct minority, who were different to Aboriginal peoples. The following year, the Queensland legislature passed legislation to the same effect.
2.117 The island of Mer (Murray Island) was the subject of the first successful native title claim in Australia. In 1992, the High Court in Mabo v Queensland [No 2], found that pre-existing rights and interests in land held by Aboriginal and Torres Strait Islander peoples—native title—survived the assertion of sovereignty by the Crown. In 2010, Torres Strait Islander peoples’ native title rights to sea country in the Torres Strait were also recognised, over an area of approximately 44,000 square kilometres.
2.118 In 1994, the Torres Strait Regional Authority (TSRA) was established as a Commonwealth representative body for Torres Strait Islander and Aboriginal people living in the Torres Strait. The 20 elected members on the TSRA Board are Torres Strait Islander or Aboriginal people living in the region, and are elected every four years by their individual communities. The TSRA’s functions include formulating, coordinating and implementing programs for Torres Strait Islander and Aboriginal people living within the region.
Criminal justice issues in the Torres Strait Islands
2.119 Forming a picture of the incarceration of Torres Strait Islander people is made difficult by the fact that the available data relating to the incarceration of Aboriginal and Torres Strait Islander peoples does not distinguish between people who identify as being an ‘Aboriginal’ person, a ‘Torres Strait Islander’ person, or as both.
2.120 During this Inquiry, the ALRC visited the Torres Strait to consult with stakeholders there and gain an understanding of the incarceration of Torres Strait Islander people within the Torres Strait region.
2.121 During consultations on Thursday Island, a number of stakeholders told the ALRC that many of the criminal justice issues affecting Aboriginal communities across Australia were not experienced by Torres Strait Islander people living in the Torres Strait, due in part to its different history of colonisation.
2.122 Crime and justice figures collected by the Queensland Police Service for 2015–16 showed that, compared to Queensland, the Torres Strait region had a lower rate of total reported offences. However, it had a higher rate of reported offences against the person, compared to the rate in Queensland. A 2011 study suggested that family violence in the Torres Strait was not as prevalent as in certain remote Cape York Aboriginal communities, but that there was likely to be under-reporting of family violence. Alcohol and cannabis was noted as a risk factor for violence, as well as lack of appropriate service infrastructure, factors associated with poverty, such as lack of education, poor health and low self-esteem.
2.123 Although contact with the criminal justice system may not be at the disproportionate rates experienced on the mainland, the ALRC observed that the operation of the criminal justice system in the Torres Strait Islands provides an experience similar to that of other regional and remote communities.
2.124 Many of the difficulties that exist in remote mainland communities when responding to criminal justice issues are also relevant in the Torres Strait. For example, the cost of travel within the Torres Strait, and from the Torres Strait to the mainland can be prohibitively expensive, which can lead to breaches of bail conditions. Scott Mclean Cullen noted that:
The distance and the cost of transport to court for appearances is high. As it can be up to $1000 for return flights, ferries and transfers from Outer Island to Thursday Island. It is a further $800–$1000 to travel from Horn Island to Cairns, this transport might include small plane flights services.
2.125 Lack of access to interpreters has also been identified as a barrier to justice in the Torres Strait, where English may be a person’s second or third language.
2.126 The availability of community-based sentences is also limited in the Torres Strait Islands, as are diversion programs including drug and alcohol treatment programs and counselling services.
2.127 While these difficulties exist, there are also examples of adaptation of the criminal justice system in the Torres Strait to be responsive to local circumstances. For example, the Magistrates Court operates an Outer Island Circuit Court on 10 different Torres Straits Islands four times a year:
The Outer Island Court Circuit was developed so that community members from the Torres Strait Outer Islands can have their court matters heard in their own community or a community nearby. The Outer Island Courts hear minor matters which would otherwise require members of the community to travel at significant expense to Thursday Island. All serious matters are still referred and heard at Thursday Island.
2.128 Community justice groups also operate to provide cultural support for court matters and to provide ‘cultural reports to the courts at sentencing and bail applications, assistance to the courts in managing community-based offences, and networking to implement crime prevention initiatives’. In 2012, Dorothy Elu, an Elder on the Community Justice Group, provided an example of their work:
we have to talk on their family’s side and all that, we try to ask the judge to leave it to us to do the mediation before any further action can be taken. We had one boy last week and he had about 12 cases. The judge was going to send him down to Lotus [a prison] … We talked to the judge on behalf of his family—now he’s free, now he’s just waiting for our time to do some mediation with him and drug and alcohol counselling and all that.
2.129 Torres Strait Island Police Support Officers (TSIPSOs) are another initiative that responds to local needs. TSIPSOs are community police employed in the Torres Strait by the Queensland Police Service. TSIPSOs have limited police powers and reside on the remote Islands. They are not sworn police officers and have no power to detain or arrest, but do provide a point of contact between local communities and the police, who are based on Thursday Island. Scott Mclean Cullen submitted that:
For the Torres Straits courts the input of local Justice Groups and the island TIPSO (Thursday Island Police Support Officer) provide valuable local knowledge into the background and local life of an individual/ and victims. They offer insight into community life standing and personal behaviour.
2.130 While the ALRC makes no specific recommendations directed to incarceration in the Torres Strait, it considers that a number of recommendations made in this Report may be particularly relevant to the Torres Strait, including those relating to the availability of community-based sentences, and other access to justice issues such as the availability of interpreters.
Anna Shnukal, ‘Torres Strait Islanders’ in Maximilian Brandle (ed), Multicultural Queensland 2001: 100 years, 100 Communities, A Century of Contributions (Department of Premier and Cabinet (Qld), 2001) 21, 21.
Torres Strait Regional Authority, Community Profiles <www.tsra.gov.au/the-torres-strait/community-profiles>.
Australian Bureau of Statistics, 2016 Census: Aboriginal and/or Torres Strait Islander Peoples QuickStats—Torres Strait Islands <www.censusdata.abs.gov.au>.
John Burton, General History—The Torres Strait Torres Strait Regional Authority <www.tsra.gov.au/the-torres-strait/general-history>.
Jeremy Beckett, Encounters with Indigeneity – Writing about Aboriginal and Torres Strait Islander Peoples (Aboriginal Studies Press, 2014) 109; David Lawrence and Helen Reeves Lawrence, ‘Torres Strait: The Region and Its People’ in Richard Davis (ed), Woven Histories, Dancing Lives: Torres Strait Islander Identity, Culture and History (Aboriginal Studies Press, 2004) 24.
Burton, above n 168.
Jeremy Beckett, above n 169, 172.
Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld); Aboriginals Preservation and Protection Act 1939 (Qld); Torres Strait Islander Act 1939 (Qld).
Jeremy Beckett, above n 169, 172–3. Section 9 of the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld) granted the Protector of Aborigines the power ‘to cause Aboriginals within any district to be removed to and kept within the limits of any reserve situated in the same or any other district’.
Ibid 173. However, removals to the mainland did occur: for example, from Badu (Mulgrave Island), there were 17 documented removals between 1839 and 1950: Queensland Government, Aboriginal and Torres Strait Islander Community Histories: Badu <www.qld.gov.au/atsi/cultural-awareness-heritage-arts/community-histories-badu>.
Jeremy Beckett, above n 169, 173.
Queensland Government, above n 174.
Jeremy Beckett, above n 169, 174.
Torres Strait Islander Act 1939 (Qld).
Mabo v Queensland [No 2] (1992) 175 CLR 1, 57, 69 (Brennan J, Mason CJ, McHugh J agreeing); 100–01 (Deane and Gaudron JJ); 184 (Toohey J).
Akiba v Queensland (No 3) (2010) 204 FCR 1.
Under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), today known as the Aboriginal and Torres Strait Islander Act 2005 (Cth).
Torres Strait Regional Authority, The TSRA <www.tsra.gov.au/the-tsra>. Two Northern Peninsula Area communities, Bamaga and Seisia, are also part of area covered by the TSRA.
This refers to court and police data, as well as to prisoner data reported by the Australian Bureau of Statistics. In most instances, bureaus of crime statistics and research (for example, BOCSAR in NSW and OSCAR in South Australia) also do not distinguish between these groups.
The total rate of reported offences in the Torres Strait 7,907 per 100,000, compared to 9,856 per 100,000 for Queensland. The total rate of offences against the person in the Torres Strait was 2,278 per 100,000, compared to 634 per 100,000 for Queensland: Queensland Government Statistician’s Office, Queensland Regional Profiles Resident Profile—People Who Live in the Region Torres Strait Islands Statistical Area Level 2 (SA2) Compared with Queensland (Queensland Government, 8 December 2017) <https://statistics.qgso.qld.gov.au/qld-regional-profiles>.
Memmott, above n 148, 346–9.
S McLean Cullen, Submission 64.
Queensland Police, A Court with a Difference for Torres Strait and Outer Islands Far North <www.mypolice.qld.gov.au/farnorth/2016/05/23/>.
Department of Aboriginal and Torres Strait Islander Partnerships (Qld), Thursday Island <www.datsip.qld.gov.au/publications-governance-resources/justice-resources/thursday-island>. See also chs 5 and 6.
ABC Radio National, Community Justice in the Torres Strait (3 July 2012) Law Report (Dorothy Elu) <www.abc.net.au/radionational/programs/lawreport/community-justice-in-the-torres-strait/4114774>.
Queensland Police, Queensland Police Welcome New Torres Strait Island Police Support Officers (TSIPSO) (28 October 2013) <www.mypolice.qld.gov.au/farnorth/2013/10/28>.
S McLean Cullen, Submission 64.
See also chs 7 and 10.