Criminal Law

By Anna Bennett

10.12.18

Is it a crime to be Indigenous?

In December of 2017 the Australian Law Reform Commission released Report 133: Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples. Whilst the findings of this report would not come as any great surprise to any member of the legal profession, they are of profound importance and should not be understated. As Arthur Moses SC, President of the NSW Bar Association, has recognised; as members of the legal profession, we know that proportionately, indigenous Australians are the most incarcerated people in the world. Nevertheless, incarceration rates of Indigenous Australian’s have drastically worsened over the past decade.

Aboriginal and Torres Strait Islander (“ATSI”) adults make up approximately 2-3% of Australia’s population. However, in terms of Australia’s national prison population, ATSI adults constitute approximately 27%.

Over the past decade there have been many purported advancements in the recognition of Indigenous Australians and the persecution and prejudices they have, and continue to face. From the National Apology in 2008 delivered by then Prime Minister Kevin Rudd to the Royal Commission into Indigenous Deaths in Custody, and the Government’s continued persistence toward the Closing the Gap initiative, Australia has appeared to be slowly progressing toward abridging the inequality experienced by Indigenous Australian’s and ultimately addressing the enormous trauma inflicted upon Australia’s First Peoples.

Despite this afront of progression, since 2006 incarceration rates of ATSI persons has increased by a staggering 41%. Today, if you are an ATSI woman, you are 21.2 times more likely to be imprisoned than a non-Indigenous woman. If you are an ATSI man you are 14.7 times more likely. An ATSI person is 7 times more likely to be charged with a criminal offence and 12.5 times more likely to be sentenced to a term of imprisonment than a non-Indigenous person.

The Australian Law Reform Commission’s report offered 35 recommendations under 13 broad categories for State, Territory and Commonwealth governments to address the enormous disparity between Indigenous and non-indigenous incarceration rates. Many of these recommendations relate to the sentencing and parole regimes of indigenous persons, aimed at achieving substantive (as opposed to simply formal) equality before the law.

In October of 2018 the Australian Labour Party introduced the Justice Legislation Amendment (Walama Court) Bill 2018 into the NSW Legislative Assembly for the establishment of the Walama Court; an Indigenous-specific sentencing court within the jurisdiction of the NSW District Court. The establishment of the Walama Court has been jointly supported by the New South Wales Bar Association and the Police Association of New South Wales and represents the first really promising step in the pursuit of a genuine solution to the disproportionate rates of Indigenous incarceration and recidivism in the jurisdiction. “Walama” originates from an Eora word meaning “coming back” or “return” and is representative of an Indigenous return to identity and community. The name of the Court is reflective of one of its purposes; to reduce the social impact that incarceration has on Aboriginal families and communities by opting to return offenders to the community through rigorous supervision orders and diversionary programs in the sentencing process. The Walama Court would modify the legal system to make it less culturally alienating to Indigenous Australians. The model is a hybrid incorporation of aspects of the NSW Drug Court and the Victorian Koori Court.

Whilst the future of the establishment of the Walama Court is dubious, due largely to the indicated unlikelihood of receiving Government funding, it’s a step in the right direction and will be interesting to see if other jurisdictions follow suit.