Equality before the law
This Inquiry involves fundamental questions about achieving substantive, not just formal, equality before the law. Formal equality suggests that all people should be treated the same regardless of their differences. Substantive equality is ‘premised on the basis that rights, entitlements, opportunities and access are not equally distributed throughout society and that a one size fits all approach will not achieve equality’.
The ALRC does not propose a ‘parallel system’ of justice for Aboriginal and Torres Strait Islander people, as warned against by the Institute of Public Affairs. However, it recognises, as Brennan J observed in Gerhardy v Brown, that formal equality may be ‘an engine of oppression destructive of human dignity if the law entrenches inequalities “in the political, economic, social, cultural or any other field of public life”’. Achieving substantive and not formal equality before the law includes, for example, the consideration upon sentencing of the unique and systemic factors affecting Aboriginal and Torres Strait Islander offenders. It also includes not only consistency in the provision of sentence options and diversion and support programs across the country, but also ensuring that these are culturally appropriate.
Reducing the incarceration of women
Some additional factors have to be taken into account with regard to the incarceration of women. One of these factors is the impact of family violence. Available research suggests that Aboriginal and Torres Strait Islander women experience family violence at a higher rate than the broader Australian community, and that the majority of Aboriginal and Torres Strait Islander women in prison have experienced physical or sexual abuse.
The Human Rights Law Centre and Change the Record Coalition have noted:
The overwhelming majority of Aboriginal and Torres Strait Islander women in prison are survivors of physical and sexual violence. Many also struggle with housing insecurity, poverty, mental illness, disability and the effects of trauma. … Criminal justice systems across Australia continue to be largely unresponsive to the unique experiences, circumstances and strengths of Aboriginal and Torres Strait Islander women.
Criminal justice reform is only one aspect of the range of strategies required to address family violence in Aboriginal and Torres Strait Islander communities, with National Family Violence Prevention Legal Services suggesting that:
a combination of preventative education, community engagement, support services and legal assistance (as both early intervention and response) are all crucial parts of the continuum of services to address and reduce family violence against Aboriginal and Torres Strait Islander women and children.
An additional important consideration is the effect that incarceration of women can have on families and communities. As the Human Rights Law Centre and Change the Record Coalition have further noted:
Some 80% of Aboriginal and Torres Strait Islander women in prison are mothers. Many women in the justice system care not only for their own children, but for the children of others and family who are sick and elderly. Prosecuting and imprisoning women is damaging for Aboriginal and Torres Strait islander children, who are already over-represented in child protection and youth justice systems.
The number of Aboriginal and Torres Strait Islander parents—particularly women—in prison has a direct effect on the number of Aboriginal and Torres Strait Islander children in out-of-home care, which is a recognised pathway to youth detention and adult offending.
Aboriginal and Torres Strait Islander leadership
A recurring observation made during consultations and in submissions to this Inquiry was that solutions should be developed and led by Aboriginal and Torres Strait Islander people. Good examples are the Koori courts in Victoria and community justice groups of Elders, which support and assist Aboriginal and Torres Strait Islander people throughout the criminal justice process. The ALRC was told that some of the most effective solutions to local problems (such as diversion programs and post release assistance) have been developed locally by, or in conjunction with, local Aboriginal and Torres Strait Islander people. The corollary is that what works in one community (such as alcohol restrictions) may not be the best solution in another.
Taking a local approach to local problems can create difficulties for Australian governments, which necessarily plan for centrally developed and imposed national, state or territory-wide programs. Without acceptance and participation by the local communities, those programs can fail or, at least, not fully meet their objectives.
The ALRC notes the importance of governments working with Aboriginal and Torres Strait Islander organisations and communities to implement the range of strategies recommended to reduce Aboriginal and Torres Strait Islander incarceration. For example, the ALRC has recommended that state and territory governments work with Aboriginal and Torres Strait Islander organisations to: develop and implement culturally appropriate bail support programs and diversion options; develop options to reduce the imposition of fines and infringement notices; and develop prison programs that address offending behaviours and prepare people for release. One way to achieve local involvement is through Aboriginal Justice Agreements. Justice reinvestment also emphasises tailored, local solutions to the particular drivers of incarceration in a community.
Economic and social costs of incarceration
The implementation of the recommendations in this Report, including the provision of more diversion, support and rehabilitation programs before, during and after incarceration, will require additional resources.
However, the cost of implementing these recommendations must be considered against the cost of incarcerating Aboriginal and Torres Strait Islander people at disproportionate levels. Incarceration is expensive: it has been estimated that the total justice system costs of Aboriginal and Torres Strait Islander incarceration in 2016 were $3.9 billion. When the costs of Aboriginal and Torres Strait Islander incarceration are broadened beyond those directly related to the criminal justice system to include other economic costs, the estimated cost rises to $7.9 billion. As well as the cost of imprisonment to the State, incarceration can also have a broader social cost, particularly when concentrated in a particular community.
The recommendations in this Report can be said to take a ‘justice reinvestment’ approach—broadly, the notion that there should be a redirection of criminal justice resources from incarceration to strategies that can better address the causes of offending. These strategies can be both within and outside of the criminal justice system. Given the significant and growing economic and social costs of incarceration, the ALRC suggests that there is a compelling case for Australian governments collectively to invest in developing appropriate and more effective alternatives to imprisonment for Aboriginal and Torres Strait Islander people.
Australian Human Rights Commission, The Declaration Dialogue Series: Paper No 5—Equality and Non-Discrimination (2013) 8.
Institute of Public Affairs, Submission 58.
Gerhardy v Brown (1985) 159 CLR 70, 129.
See chs 2 and 11.
Human Rights Law Centre and Change the Record Coalition, above n 19, 5.
National Family Violence Prevention Legal Services, Submission 77.
Human Rights Law Centre and Change the Record Coalition, above n 19, 5.
The cost of incarceration is more fully discussed in ch 4.