ALRC Inquiry Into Indigenous Incarceration Rates: Consultation on Draft Terms

Tuesday 6 December 2016 @ 11.52 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On 27 October 2016 (as previously reported), the Federal Attorney General, Senator George Brandis (the AG) and the Minister for Indigenous Affairs, Senator Nigel Scullion, announced in a joint Media Release that the Turnbull Government would ask the Australian Law Reform Commission (the ALRC) to ". . . examine the factors leading to the over representation of Indigenous Australians in our prison system, and consider what reforms to the law could ameliorate this national tragedy".

The ALRC inquiry announcement was made at a time when the Four Corners Story relating to indigenous youth detention was in the news, and further, it was being reported that the overall statistics for indigenous incarceration were going backwards, with the numbers showing that in 1991, Indigenous Australians made up 14 percent of the national prison population and that as of 2015 that percentage had risen to 27 percent, meaning more than one in four prisoners in Australian prisons are Indigenous, even though Indigenous people as a whole only make up just two percent of the total population.

Terms of Reference to be Subject to Consultation

In announcing the ALRC inquiry, the AG and the Minister indicated in the Media Release that:

"The terms of reference will be subject to consultation, particularly with Indigenous Australians, state and territory governments who have primary responsibility for our criminal justice frameworks, as well as the broader legal profession."


Today (6 November 2016) the ALRC has posted the draft terms of reference to its website, stating:

"The draft terms of reference request that the ALRC examine the factors leading to the over representation of Indigenous Australians in our prison systems and consider what reforms to the law could address this. . . . Members of the public are invited to make submissions on the proposed terms of reference . . . Submissions for this consultation should be limited to comments about the terms of reference."

The Terms of Reference - Key Points

The "Consultation draft terms of reference" are briefly outlined as follows:

The ALRC is to have regard to ". . . laws and legal frameworks that contribute to the incarceration rate of Indigenous Australians", including:

  • laws and legal frameworks that inform decisions to hold or keep Indigenous Australians in custody, including decisions in relation to for example, cautioning, protective custody, arrest;
  • factors within laws and legal frameworks that affect decisions to hold or keep Indigenous Australians in custody, including for example: consideration of community safety, the nature of the offences resulting in incarceration, the availability of alternatives to incarceration;
  • whether certain laws and legal frameworks, for example laws that regulate the availability of alcohol, contribute to the rate of Indigenous offending and incarceration ;
  •  legal institutions and law enforcement, including police, courts (including courts specialising in dealing with Indigenous offenders), legal assistance services and prisons; and
  • differences in the application of laws in different local contexts.

The ALRC should use existing data and research that demonstrates:

  • best practice laws and legal frameworks both in Australia and internationally that reduce the rate of Indigenous incarceration;
  • the effects of laws and legal frameworks on the rate of Indigenous incarceration;
  • the experiences of the legal system and incarceration and its impacts for Indigenous Australians, including in relation to employment, housing, health, education and families; and
  • the broader contextual factors contributing to Indigenous incarceration and any laws and legal frameworks with regard to these.

As part of the reference, the ALRC is required to identify and consider other reports, inquiries and action plans that relate to this issue, including: the Royal Commission into Aboriginal Deaths in Custody; the Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report 31 March 2017), and various Senate and other reports listed in detail in the Consultation draft terms of reference.

Finally, the ALRC is also have regard to relevant international human rights standards and instruments and consider the gaps in available data on Indigenous incarceration and consider recommendations with regard to laws and legal frameworks that might improve data collection. 

Submission Now Open

Submissions to the ALRC inquiry are now open and for this consultation ". . . should be limited to comments about the terms of reference".  Submissions are required in an accessible format, templates for which are provided on the  ALRC website. Submissions will be published on the ALRC website, unless the author requests otherwise.

Closing Dates and Next Steps

Submissions must be received by 5 pm on 13 January 2017 and will be ". . . considered by government before the inquiry is formally referred to the ALRC in early 2017". Once the inquiry commences, information will be available on the ALRC website.

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