1.29 As the Inquiry concerns the over-representation of Aboriginal and Torres Strait Islander peoples in Australian prisons, the ALRC focuses on those areas where Aboriginal and Torres Strait Islander peoples are disproportionately represented.
1.30 Aboriginal and Torres Strait people represent just 3% of the Australian population, but account for 27% of the adult prison population. The rate of incarceration has increased by 77% between 2000 and 2015. Aboriginal and Torres Strait Islander women represent 34% of the female prison population while comprising just 2.2% of Australian women. Since the RCIADIC, the rate at which Aboriginal and Torres Strait Islander people are imprisoned has more than doubled, with men are being imprisoned at 11 times the rate of the general male population, and women at more than 15 times the rate of non-Indigenous women.
1.31 There are also particular areas in which Aboriginal and Torres Strait Islander peoples are disproportionately represented in the prison population. For example, Aboriginal and Torres Strait Islander offenders are more likely to be sentenced to short terms of imprisonment than their non-Indigenous counterparts, with a national median aggregate sentence length of 2 years, compared to 3.5 years for non-Indigenous prisoners. Hence, Aboriginal and Torres Strait Islander peoples are being incarcerated for lower order crimes for which diversion and rehabilitation may be a more appropriate response.
1.32 Pauline Wright, President of the Law Society of NSW, has suggested that:
Jail is an ineffective tool to deter crime—indeed prisons have been referred to as ‘universities of crime’, so effective they seem at encouraging recidivism. Jailing people is also very costly, so it is time that we tackle the problem and find ways to reduce the record number of people filling our jails. Investing more funds in early intervention, prevention and diversion programs that can help address the underlying causes of crime is likely to achieve safer communities and reduce rates of reoffending. Sadly, despite a reduction in most categories of crime, a lack of resources for non-custodial options, especially in regional NSW, has led to more offenders being sentenced to jail, albeit for short periods, for relatively minor offences.
1.33 While this Inquiry is examining options for law reform that can reduce the incarceration rate of Aboriginal and Torres Strait Islander peoples, the proposals in this Discussion Paper do not seek to excuse or minimise violent or abusive behaviours for which incarceration is the appropriate response. It is the intention of the ALRC that the questions and proposals in this Discussion Paper should not be read as extending to those who would place community safety or the safety of individuals at risk. Further, the ALRC does not suggest that criminal behaviours should be excused or ignored as a means to reduce the incarceration rates of Aboriginal and Torres Strait Islander peoples.
Aboriginal and Torres Strait Islander incarceration in the federal context
1.34 Much of the criminal law that is the subject of this Inquiry falls within state and territory jurisdictions. The Australian Law Reform Commission Act 1996 (Cth) provides that one of the functions of the ALRC during its inquiry process is to consider proposals for uniformity between state and territory laws and to consider proposals for complementary Commonwealth, state and territory laws.
1.35 During this Inquiry, the ALRC will identify state and territory laws and legal frameworks that are key contributors to the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system. Additionally, the ALRC will highlight laws, legal frameworks and practices that seek to reduce the rate of Aboriginal and Torres Strait Islander incarceration.
1.36 The ALRC’s approach to reform in this Inquiry is informed by relevant international human rights standards and instruments. The Terms of Reference make specific reference to these. In addition, under its constituting legislation, the ALRC is directed to have regard to ‘all of Australia’s international obligations that are relevant to the matter’.
1.37 The treatment of Aboriginal and Torres Strait Islander peoples in the criminal justice system with respect to access to justice, equity in law enforcement and equity before the judicial system is captured by several international human rights treaties that include:
the International Covenant on Civil and Political Rights (ICCPR);
the Convention on the Rights of the Child (CROC);
the International Convention on the Elimination of all forms of Racial Discrimination (ICERD);
the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
the Convention on the Rights of Persons with Disabilities (CRPD).
1.38 In addition, the Australian Government endorsed the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) on 3 April 2009. Although the Declaration is non-binding and aspirational in nature, it presents a series of structured principles that might be utilised to ameliorate disadvantage and discrimination experienced by Aboriginal and Torres Strait Islander peoples.
1.39 Also of note in the international context is that, on 1 July 2016, the United Nations Human Rights Council adopted a resolution reflecting concern that ‘indigenous women and girls may be overrepresented in criminal justice systems and may be more marginalized, and thus experience more violence before, during and after the period of incarceration’.
Productivity Commission, above n 7, xxviii.
Australian Bureau of Statistics, Prisoners in Australia, 2016, Cat No 4517.0 (2016) tables 2, 4; Australian Bureau of Statistics, Estimates and Projections, Aboriginal and Torres Strait Islander Australians, 2001 to 2026, Cat No 3238.0 (2014) table 1 (Series B, 18 years and over).
Australian Bureau of Statistics, Corrective Services, Australia, June Quarter 2016, Cat No 4512.0 (2016) quoted in PricewaterhouseCoopers, Indigenous Incarceration: Unlock the Facts (2017) 5.
Australian Bureau of Statistics, above n 10, table 25. See further ch 4.
Pauline Wright, ‘President’s Message—Call for a Stronger Focus on Sentencing Alternatives’  (34) Law Society Journal 8.
Australian Law Reform Commission Act 1996 (Cth) s 21(1)(d)–(e).
Australian Law Reform Commission Act 1996 (Cth) s 24(2).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 2, 7, 9, 10, 14, 24, 26, 50.
Convention on the Rights of the Child, opened for signature 20 December 1989, 1577 UNTS 3 (entered into force 2 September 1990) arts 2, 3, 37, 40.
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) arts 2, 5,.
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) arts 1,2.
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) arts 4, 5, 7, 12, 13, 14. See also Australian Human Rights Commission, Fact Sheet 7: Australia and Human Rights Treaties (2009).
Australian Human Rights Commission, ‘United We Stand—Support for United Nations Indigenous Rights Declaration a Watershed Moment for Australia’ (Media Release, 2009).
Accelerating Efforts to Eliminate Violence against Women: Preventing and Responding to Violence against Women and Girls, Including Indigenous Women and Girls, UN HRC Res 32/19, 32nd Sess, 43rd Mtg, UN Doc A/HRC/32/L28/Rev 1(30 June 2016).