Failure to address over-incarceration of Indigenous people in Australia threatens the Rule of Law
The death of George Floyd in the United States has resulted in renewed calls for action regarding the treatment of Indigenous people in Australia. The over-representation of Indigenous Australians in the criminal justice system and recent deaths in custody indicate shortcomings in the application of the principles of equality and non-discrimination, about which ICJ Victoria (ICJV) raises considerable concern. These principles are part of the foundations of the rule of law; all public and private persons, institutions and entities are accountable to just, fair and equitable laws, and entitled to equal protection under them.
Twenty-nine years have now passed since the Royal Commission into Aboriginal Deaths in Custody delivered its landmark report. Notwithstanding its recommendations, and despite a number of steps taken to address issues it identified, the rate of over-representation of Indigenous persons in custody remains unacceptably high. According to data at changetherecord.org.au, over the last 10 years there has been an 88% increase in the number of Aboriginal and Torres Strait Islander (ATSI) people incarcerated, with Indigenous people now 13 times more likely to be imprisoned than non-Indigenous people.
It is two years since ICJV’s Report to the Australian Law Reform Commission’s Inquiry into Indigenous Incarceration Rates. ICJV’s Report recommended that all jurisdictions in Australian States and Territories adopt properly resourced court models for Indigenous people similar to the Victorian Koori Courts, which operate in consultation with local Indigenous communities. We recognise that specialist and properly resourced court models for Indigenous people is just one step in addressing rates of over-incarceration, and have also recommended an approach to sentencing similar to that of Canada. This would include the adoption of laws such as Canada’s Criminal Code s. 718.2(e) and Gladue-type sentencing reports. Under a provision like s 718.2(e), Indigenous Australians would have the right to a sentencing process that addresses: “all available sanctions other than imprisonment that are reasonable in the circumstances…with particular attention to the circumstances of Aboriginal offenders”. Adopting Gladue-style reports would thus allow courts to receive information and evidence including on the ongoing impacts of colonisation, human rights violations, ethnocide / genocide, and tragically high levels of violence against Indigenous people.
Accordingly, ICJV supports implementing the recommendations of the Royal Commission into Aboriginal Deaths in Custody and urges Federal, State and Territory governments to consider:
- Legislating for Gladue-style reports to be prepared by Indigenous organisations before sentencing occurs, after the Koori court conversation process, as well as the adoption of sentencing principles such as in Canada’s Criminal Code s. 718.2(e).
- Adopting the approach of the United Nations Special Rapporteur on the Rights of Indigenous Peoples (UN Special Rapporteur) to:
- promote laws, programs, and agreements between Indigenous peoples and states, to implement international standards concerning the rights of indigenous peoples (See Promotion of good practices);
- report on the overall human rights situations of Indigenous peoples in selected countries (See Country reports);
- address specific cases of alleged violations of the rights of indigenous peoples through communications with Governments and others (See Communications);
- conduct thematic studies on topics of special importance regarding the promotion and protection of the rights of indigenous peoples (See Thematic studies).
- Investing in early intervention, prevention and diversion strategies, and education of police to combat specific forms of discrimination against Indigenous peoples.
ICJV has sought guidance in the formulation of this statement and acknowledges the work of the Victorian Aboriginal Legal Service, which is currently undertaking a pilot of Aboriginal Community Justice Reports and should also be consulted on relevant legal reform.
As the UN Special Rapporteur has stated: “Indigenous peoples across the world experience the consequences of historical colonization and invasion of their territories, and face discrimination because of their distinct cultures, identities and ways of life”. In this context, ICJV urges that action be taken to tackle discrimination against Indigenous people and to address their over-incarceration in Australia, which threatens human rights established through the rule of law.
For further comment, contact Guy Gilbert SC, Chair ICJV
For printable version, click HERE (Indigenous incarceration)
- In November 2019, the ICJ published an expanded and updated version of Indigenous and Other Traditional or Customary Justice Systems: Selected International Sources. The compilation is a unique practical resource for practitioners in official State justice systems and indigenous, traditional or customary systems. It is also intended to assist other community members, government officials, development practitioners, civil society organizations, and academic and other professionals who engage with such justice systems.
- Seven months after the Australian Law Reform Commission accepted the ICJV submission and recommended Indigenous Experience Reports for Australian Sentencing Courts, the decision in Honeysett v The Queen  VSCA 214 was issued, which the Judicial College of Victoria has described as being “valuable guidance for sentencing courts on exactly how participation in the Koori Court sentencing conversation can be relevant to sentencing. The Court recognised that the sentencing conversation can be a confronting and difficult process and can provide the sentencing court with insight into an offender’s remorse, self-awareness and rehabilitation”.