Requirement to consider Aboriginality in Australian sentencing courts

Recommendation 6–1               Sentencing legislation should provide that, when sentencing Aboriginal and Torres Strait Islander offenders, courts take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples.

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.