Australia’s Criminal Justice System

Australia let us all rejoice, for we are not all young and free. There is a human rights crisis in Australia. The overrepresentation of Indigenous peoples in Australia’s prisons remains one of the most significant social justice and human rights issues facing Australia as a nation. Despite making up 2.3 percent of the general population, one out of four prisoners are Indigenous. Growing evidence shows that the significant increase in Indigenous incarceration rates does not necessarily reflect an increase in the number of crimes committed by Indigenous people, but rather the way that Australia’s legal system responds to crime. Systemic racism, targeted law enforcement policies and heavy-handed sentencing practices in Australia have a disproportionate and discriminatory impact on Indigenous peoples. Australia has a long history of failing to reduce rates of Indigenous incarceration.

In response to the Royal Commission into Aboriginal Deaths in Custody in 1991, Australian State and Territory governments committed to working together to reduce the unacceptably high rates of Indigenous prisoners. Nearly three decades later, Indigenous incarceration rates have almost doubled. Indigenous women are incarcerated at a higher rate than ever before, one in thirteen Indigenous men are imprisoned, and as a country Australia has become one criticised for being ‘better at keeping Aboriginal people in jail than school.’ Spending time behind bars in a cell should not be normalised for any population and it is distressing that prison has become a normal ‘cycle’ of life for Indigenous Australians. While there is no silver bullet solution to this issue, the first step will require a conscious departure from failed policies of the past.

A review of the existing literature suggests that Australia’s criminal justice system discriminates against Indigenous people. Systemic racism in policing has been instrumental in contributing to an increase in the amount of Indigenous people being charged, sentenced and incarcerated. Police are less likely to caution Indigenous Australians and more likely to refer them directly into the court system. In addition to being 27 times more likely (78 per 1000) to be apprehended by police for assault offences when compared to non-Indigenous people (2.9 per 1000), Indigenous people are more likely to be imprisoned when compared to non-Indigenous people. Indigenous people receive criminal records at a much earlier age and are 16 times more likely to die whilst incarcerated. Police officers must refrain from engaging in racist and degrading behaviour towards Indigenous people, this may be achieved through educating and raising awareness of Indigenous culture and history through cultural competency training. Alternatively, perhaps the implementation of stricter penalties for police officers who engage in degrading behaviour should be considered. Either way, minimising the systematic bias in Australia’s criminal justice system, which contributes to the increased number of Indigenous people charged, sentenced and then incarcerated, will require leadership and initiative from those at the front line.

The criminalisation of social and health issues has also been instrumental in the rising rates of Indigenous prisoners. Indigenous Australians are the most disadvantaged group in Australia. The infant mortality rate for Indigenous children is double that for non-Indigenous children. Indigenous people are four times more likely to be hospitalised for illness, six times more likely to be victims of homicide, and the unemployment rate for Indigenous Australians is approximately five times the rate for non-Indigenous Australians. Despite comprising just 2.3 % of Australia’s entire population, 50 percent of Australian suicides are by Indigenous persons. Drug and alcohol abuse, poverty, mental illness and unemployment are all common risk factors of Indigenous offending. These risk factors, which are also closely correlated with the ongoing effects of colonisation and intergenerational trauma, often motivate the commission of crimes such as theft, robbery and violence. Reaffirmed by the high rate of Indigenous recidivism, adopting an incarceration approach and harshly penalising offences that are motivated primarily by social and health issues will inevitably lead to higher rates of incarceration in Indigenous populations.

Other sentencing practices like mandatory minimum sentences (MMS) also pose significant barriers in reducing the rates of Indigenous incarceration. MMS, in which the law sets a minimum or fixed penalty for a particular offence, has an adverse and ‘draconian’ impact on Indigenous Australians. This is clearly reflected by the 223% increase in the number of Indigenous women incarcerated in the NT during the first year of operation of these laws. The operation of section 401 of the Western Australian Criminal Code provides an insight into the discriminatory effect that MMS has on Indigenous Australians. This section requires a Magistrate to impose a minimum one-year imprisonment for youth offenders who have been convicted of three counts of home burglary. An Indigenous juvenile, who by fact of his Aboriginality is 14 times more likely to be homeless, must be imprisoned for 12 months if he enters three houses in the same night to find food and water. Prescribing MMS to crimes that are more likely to be committed by those who suffer disadvantage at a significantly higher rate is an effective method for incarcerating those who often feel ‘compelled [and have] no choice but to commit crimes.’

To have any real prospect of reducing Indigenous incarceration, Australia needs to evolve from an incarceration-based approach to a more holistic method. MMS regimes, which are both discriminatory and financially draining, should be abolished and instead, finances should be invested into measures that address the drivers of offending. Justice reinvestment for example, diverts funds to ‘community based programs and services that address the underlying causes of crime.’ This approach, which is based on notions of healing, empowerment and community, focuses on placing funds into education and preventative programs, and invests money into housing and health. To ensure the success of future efforts aimed at improving Indigenous incarceration rates, it is critical that Indigenous peoples are given the opportunity to direct us towards a future where Indigenous people are not fifteen times more likely than non-Indigenous people to be incarcerated. Indigenous people must be given the chance to take control of matters that affect their families, their friends and their lives. It is time for our nation to stop incarcerating our most vulnerable and instead take responsibility in promoting healing, strength and reconciliation.

When the Royal Commission released its final report almost three decades ago, Australia made a commitment to reducing the rates of Indigenous incarceration. Shamefully, the rates of Indigenous incarceration are higher than ever before. If reconciliation is ever to become a reality, progress needs to be made to ensure that racial discrimination and systemic bias is addressed throughout all stages of the criminal justice system. Policy attitudes towards Indigenous peoples require urgent change and sentencing practices that discriminatively impact Indigenous people need to be reviewed, immediately. Most importantly, we must support and empower Indigenous people. We must get out of their way and let them direct our nation to finding the most effective solutions to this complex problem. We must respectfully listen to their voices, implement their ideas and willingly act on their advice. By doing this, Australia has a tangible opportunity to contribute positively to reduce the rates of Indigenous incarceration and pave a clear path to reconciliation, both of which are well overdue.