ALRC to Consider Laws and Legal Frameworks Contributing to High Indigenous Incarceration Rates

Thursday 20 July 2017 @ 11.03 a.m. | Crime | Legal Research

On 17 July 2017 by Media Release the Australian Law Reform Commission (the ALRC) announced the release of a Discussion Paper dealing with the "Incarceration Rates of Aboriginal and Torres Strait Islander Peoples" (the paper is DP 84 and  is available here). The ALRC is calling for comments and feedback on its questions raised in the discussion paper and its law reform proposals.

Purpose of the Inquiry 

The inquiry Terms of Reference want the ALRC to consider any laws and legal frameworks contributing to the  incarceration rate of Aboriginal and Torres Strait Islander peoples and which "inform decisions" to hold or keep Aboriginal and Torres Strait Islander people in custody. 

The ALRC is 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, and incarceration as a deterrent and as a punishment.  

The ALRC is also  directed by its Terms of Reference to consider any laws that contributing to the rate of Aboriginal and  Torres Strait Islander peoples offending and the rate of incarceration of Aboriginal and Torres Strait Islander women.

To date, the ALRC has consulted widely, having conducted more than 100 consultations, those consultations have  informed the development of the questions and proposals put forward in the Discussion Paper - and, following its  release, the ALRC states that it will begin a second round of stakeholder consultations.

Terms of Reference

More specifically according to Discussion Paper, the inquiry will be focused on the problem of over-representation of  Aboriginal and Torres Strait Islander peoples in the criminal justice system. It picks up on the recent comment of   the Attorney-General of Australia, Senator Brandis QC, who described the current situation as a "national tragedy", (see Senator George Brandis, "Incarceration Rates of Aboriginal and Torres Strait Islander Peoples" (Media Release, 27 October 2016)). From that date, on 6 December 2016, the Attorney-General’s Department released draft Terms of Reference for public consultation, and on 10 February 2017, the ALRC received the final Terms of Reference. The inquiry is to be led by His Honour Judge Matthew Myers AM, ALRC Commissioner.

The ALRC is 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. 

In this sense ‘Legal frameworks’ encompass: police, courts, legal assistance services and prisons. 

  • Further, the ALRC is asked to consider a number of factors that decision makers take into account when deciding on a criminal justice response, these include: community safety, the availability of alternatives to incarceration, the degree of discretion available in decision making and principles informing decisions to incarcerate. 

Note: A special area for consideration as already mentioned being the incarceration of Aboriginal and Torres Strait Islander women.

  • 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.

People Should Not Go to Prison for Unpaid Fines

Prosecution for unpaid fines and penalties has, as the ABC News reports, been identified as one of the key areas for indigenous over-representation in the criminal justice system.

"People with unpaid fines should not be imprisoned but instead work off the debt, an influential government body (the ALRC) has recommended."

In its Discussion Paper, the ALRC indicates that States and Territories should abolish laws imprisoning people for unpaid penalties, saying:

"Imprisonment for fine default results in punishment disproportionate to the offending conduct,. . ."

The ALRC suggests instead introducing "work and development orders" similar to those which exist in New South Wales and allow people to work off  infringements through measures such as community work, medical treatment or education,  including, for example,  driving lessons for people fined for driving unlicensed. The ALRC goes on to say in its Discussion Paper:

"Aboriginal and Torres Strait Islander peoples are over-represented as fine recipients and are less likely than non- Indigenous people to pay a fine at first . . . and are consequently susceptible to escalating fine debt and fine  enforcement measures, . . ."

Next Stage of the Inquiry

The ALRC has invited submissions in response to  the Discussion Paper, which is available at the ALRC here. Submissions can be made to the ALRC up to 4 September 2017.

The ALRC is required to report on the incarceration rates of Aboriginal and Torres Strait Islander peoples to the Attorney-General by 22 December 2017.  To follow the progress of the Inquiry go here.

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