” The Terms of Reference for this Inquiry ask the ALRC 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 people in custody. ”
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Full Terms of reference part B below
The ALRC was asked 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 Terms of Reference also direct the ALRC to consider laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples offending and the rate of incarceration of Aboriginal and Torres Strait Islander women.
Submissions close on 4 September 2017.
Part A Proposals and Questions
1. Structure of the Discussion Paper
1.40 The Discussion Paper is structured in parts. Following the introduction, Part 2 addresses criminal justice pathways. The ALRC has identified three key areas that influence incarceration rates: bail laws and processes, and remand; sentencing laws and legal frameworks including mandatory sentencing, short sentences and Gladue-style reports; and transition pathways from prison, parole and throughcare. These were the focus of stakeholder comments and observations in preliminary consultations.
1.41 Part 3 considers non-violent offending and alcohol regulation. It provides an overview of the detrimental effects of fine debt on Aboriginal and Torres Strait Islander peoples, including the likelihood of imprisonment in some jurisdictions. Fine debt can be tied to driver licence offending, and the ALRC asks how best to minimise licence suspension caused by fine default. Part 3 also looks at ways laws and legal frameworks can operate to decrease alcohol supply so as to minimise alcohol-related offending in Aboriginal and Torres Strait Islander communities.
1.42 Part 4 discusses the incarceration of Aboriginal and Torres Strait Islander women. It contextualises Aboriginal and Torres Strait Islander female offending within experiences of trauma, including isolation; family and sexual violence; and child removal. It outlines how proposals in other chapters may address the incarceration rates of Aboriginal and Torres Strait Islander women, and asks what more can be done.
1.43 Part 5 considers access to justice, and examines ways that state and territory governments and criminal justice systems can better engage with Aboriginal and Torres Strait Islander peoples to prevent offending and to provide better criminal justice responses when offending occurs. The ALRC places collaboration with Aboriginal and Torres Strait Islander organisations at the centre of proposals made in this Part, and suggests accountability measures for state and territory government justice agencies and police. The remoteness of communities, the availability of and access to legal assistance and Aboriginal and Torres Strait Islander interpreters are also discussed. Alternative approaches to crime prevention and criminal justice responses, such as those operating under the banner of ‘justice reinvestment’, are also canvassed.
2. Bail and the Remand Population
Proposal 2–1 The Bail Act 1977 (Vic) has a standalone provision that requires bail authorities to consider any ‘issues that arise due to the person’s Aboriginality’, including cultural background, ties to family and place, and cultural obligations. This consideration is in addition to any other requirements of the Bail Act.
Other state and territory bail legislation should adopt similar provisions.
As with all other bail considerations, the requirement to consider issues that arise due to the person’s Aboriginality would not supersede considerations of community safety.
Proposal 2–2 State and territory governments should work with peak Aboriginal and Torres Strait Islander organisations to identify service gaps and develop the infrastructure required to provide culturally appropriate bail support and diversion options where needed.
3. Sentencing and Aboriginality
Question 3–1 Noting the decision in Bugmy v The Queen  HCA 38, should state and territory governments legislate to expressly require courts to consider the unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples when sentencing Aboriginal and Torres Strait Islander offenders?
If so, should this be done as a sentencing principle, a sentencing factor, or in some other way?
Question 3–2 Where not currently legislated, should state and territory governments provide for reparation or restoration as a sentencing principle? In what ways, if any, would this make the criminal justice system more responsive to Aboriginal and Torres Strait Islander offenders?
Question 3–3 Do courts sentencing Aboriginal and Torres Strait Islander offenders have sufficient information available about the offender’s background, including cultural and historical factors that relate to the offender and their community?
Question 3–4 In what ways might specialist sentencing reports assist in providing relevant information to the court that would otherwise be unlikely to be submitted?
Question 3–5 How could the preparation of these reports be facilitated? For example, who should prepare them, and how should they be funded?
4. Sentencing Options
Question 4–1 Noting the incarceration rates of Aboriginal and Torres Strait Islander people:
(a) should Commonwealth, state and territory governments review provisions that impose mandatory or presumptive sentences; and
(b) which provisions should be prioritised for review?
Question 4–2 Should short sentences of imprisonment be abolished as a sentencing option? Are there any unintended consequences that could result?
Question 4–3 If short sentences of imprisonment were to be abolished, what should be the threshold (eg, three months; six months)?
Question 4–4 Should there be any pre-conditions for such amendments, for example: that non-custodial alternatives to prison be uniformly available throughout states and territories, including in regional and remote areas?
Proposal 4–1 State and territory governments should work with peak Aboriginal and Torres Strait Islander organisations to ensure that community-based sentences are more readily available, particularly in regional and remote areas.
Question 4–5 Beyond increasing availability of existing community-based sentencing options, is legislative reform required to allow judicial officers greater flexibility to tailor sentences?
5. Prison Programs, Parole and Unsupervised Release
Proposal 5–1 Prison programs should be developed and made available to accused people held on remand and people serving short sentences.
Question 5–1 What are the best practice elements of programs that could respond to Aboriginal and Torres Strait Islander peoples held on remand or serving short sentences of imprisonment?
Proposal 5–2 There are few prison programs for female prisoners and these may not address the needs of Aboriginal and Torres Strait Islander female prisoners. State and territory corrective services should develop culturally appropriate programs that are readily available to Aboriginal and Torres Strait Islander female prisoners.
Question 5–2 What are the best practice elements of programs for Aboriginal and Torres Strait Islander female prisoners to address offending behaviour?
Proposal 5–3 A statutory regime of automatic court ordered parole should apply in all states and territories.
Question 5–3 A statutory regime of automatic court ordered parole applies in NSW, Queensland and SA. What are the best practice elements of such schemes?
Proposal 5–4 Parole revocation schemes should be amended to abolish requirements for the time spent on parole to be served again in prison if parole is revoked.
6. Fines and Driver Licences
Proposal 6–1 Fine default should not result in the imprisonment of the defaulter. State and territory governments should abolish provisions in fine enforcement statutes that provide for imprisonment in lieu of unpaid fines.
Question 6–1 Should lower level penalties be introduced, such as suspended infringement notices or written cautions?
Question 6–2 Should monetary penalties received under infringement notices be reduced or limited to a certain amount? If so, how?
Question 6–3 Should the number of infringement notices able to be issued in one transaction be limited?
Question 6–4 Should offensive language remain a criminal offence? If so, in what circumstances?
Question 6–5 Should offensive language provisions be removed from criminal infringement notice schemes, meaning that they must instead be dealt with by the court?
Question 6–6 Should state and territory governments provide alternative penalties to court ordered fines? This could include, for example, suspended fines, day fines, and/or work and development orders.
Proposal 6–2 Work and Development Orders were introduced in NSW in 2009. They enable a person who cannot pay fines due to hardship, illness, addiction, or homelessness to discharge their debt through:
- program attendance;
- medical treatment;
- counselling; or
- education, including driving lessons.
State and territory governments should introduce work and development orders based on this model.
Question 6–7 Should fine default statutory regimes be amended to remove the enforcement measure of driver licence suspension?
Question 6–8 What mechanisms could be introduced to enable people reliant upon driver licences to be protected from suspension caused by fine default? For example, should:
(a) recovery agencies be given discretion to skip the licence suspension step where the person in default is vulnerable, as in NSW; or
(b) courts be given discretion regarding the disqualification, and disqualification period, of driver licences where a person was initially suspended due to fine default?
Question 6–9 Is there a need for regional driver permit schemes? If so, how should they operate?
Question 6–10 How could the delivery of driver licence programs to regional and remote Aboriginal and Torres Strait Islander communities be improved?
7. Justice Procedure Offences—Breach of Community-based Sentences
Proposal 7–1 To reduce breaches of community-based sentences by Aboriginal and Torres Strait Islander peoples, state and territory governments should engage with peak Aboriginal and Torres Strait Islander organisations to identify gaps and build the infrastructure required for culturally appropriate community-based sentencing options and support services.
Question 8–1 Noting the link between alcohol abuse and offending, how might state and territory governments facilitate Aboriginal and Torres Strait Islander communities, that wish to do so, to:
(a) develop and implement local liquor accords with liquor retailers and other stakeholders that specifically seek to minimise harm to Aboriginal and Torres Strait Islander communities, for example through such things as minimum pricing, trading hours and range restriction;
(b) develop plans to prevent the sale of full strength alcohol within their communities, such as the plan implemented within the Fitzroy Crossing community?
Question 8–2 In what ways do banned drinkers registers or alcohol mandatory treatment programs affect alcohol-related offending within Aboriginal and Torres Strait Islander communities? What negative impacts, if any, flow from such programs?
9. Female Offenders
Question 9–1 What reforms to laws and legal frameworks are required to strengthen diversionary options and improve criminal justice processes for Aboriginal and Torres Strait Islander female defendants and offenders?
10. Aboriginal Justice Agreements
Proposal 10–1 Where not currently operating, state and territory governments should work with peak Aboriginal and Torres Strait Islander organisations to renew or develop Aboriginal Justice Agreements.
Question 10–1 Should the Commonwealth Government develop justice targets as part of the review of the Closing the Gap policy? If so, what should these targets encompass?
11. Access to Justice Issues
Proposal 11–1 Where needed, state and territory governments should work with peak Aboriginal and Torres Strait Islander organisations to establish interpreter services within the criminal justice system.
Question 11–1 What reforms to laws and legal frameworks are required to strengthen diversionary options and specialist sentencing courts for Aboriginal and Torres Strait Islander peoples?
Proposal 11–2 Where not already in place, state and territory governments should provide for limiting terms through special hearing processes in place of indefinite detention when a person is found unfit to stand trial.
Question 11–2 In what ways can availability and access to Aboriginal and Torres Strait Islander legal services be increased?
Proposal 11–3 State and territory governments should introduce a statutory custody notification service that places a duty on police to contact the Aboriginal Legal Service, or equivalent service, immediately on detaining an Aboriginal and Torres Strait Islander person.
12. Police Accountability
Question 12–1 How can police work better with Aboriginal and Torres Strait Islander communities to reduce family violence?
Question 12–2 How can police officers entering into a particular Aboriginal or Torres Strait Islander community gain a full understanding of, and be better equipped to respond to, the needs of that community?
Question 12–3 Is there value in police publicly reporting annually on their engagement strategies, programs and outcomes with Aboriginal and Torres Strait Islander communities that are designed to prevent offending behaviours?
Question 12–4 Should police that are undertaking programs aimed at reducing offending behaviours in Aboriginal and Torres Strait Islander communities be required to: document programs; undertake systems and outcomes evaluations; and put succession planning in place to ensure continuity of the programs?
Question 12–5 Should police be encouraged to enter into Reconciliation Action Plans with Reconciliation Australia, where they have not already done so?
Question 12–6 Should police be required to resource and support Aboriginal and Torres Strait Islander employment strategies, where not already in place?
13. Justice Reinvestment
Question 13–1 What laws or legal frameworks, if any, are required to facilitate justice reinvestment initiatives for Aboriginal and Torres Strait Islander peoples?
Part B The Term of reference
ALRC inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples
I, Senator the Hon George Brandis QC, Attorney-General of Australia, refer to the Australian Law Reform Commission, an inquiry into the over-representation of Aboriginal and Torres Strait Islander peoples in our prisons.
It is acknowledged that while laws and legal frameworks are an important factor contributing to over‑representation, there are many other social, economic, and historic factors that also contribute. It is also acknowledged that while the rate of imprisonment of Aboriginal and Torres Strait Islander peoples, and their contact with the criminal justice system – both as offenders and as victims – significantly exceeds that of non‑Indigenous Australians, the majority of Aboriginal and Torres Strait Islander people never commit criminal offences.
Scope of the reference
- In developing its law reform recommendations, the Australian Law Reform Commission (ALRC) should have regard to:
- Laws and legal frameworks including legal institutions and law enforcement (police, courts, legal assistance services and prisons), 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, specifically in relation to:
- the nature of offences resulting in incarceration,
- protective custody,
- remand and bail,
- sentencing, including mandatory sentencing, and
- parole, parole conditions and community reintegration.
- Factors that decision-makers take into account when considering (1)(a)(i-viii), including:
- community safety,
- availability of alternatives to incarceration,
- the degree of discretion available to decision-makers,
- incarceration as a last resort, and
- incarceration as a deterrent and as a punishment.
- Laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples offending and including, for example, laws that regulate the availability of alcohol, driving offences and unpaid fines.
- Aboriginal and Torres Strait Islander women and their rate of incarceration.
- Differences in the application of laws across states and territories.
- Other access to justice issues including the remoteness of communities, the availability of and access to legal assistance and Aboriginal and Torres Strait Islander language and sign interpreters.
- In conducting its Inquiry, the ALRC should have regard to existing data and research in relation to:
- best practice laws, legal frameworks that reduce the rate of Aboriginal and Torres Strait Islander incarceration,
- pathways of Aboriginal and Torres Strait Islander peoples through the criminal justice system, including most frequent offences, relative rates of bail and diversion and progression from juvenile to adult offending,
- alternatives to custody in reducing Aboriginal and Torres Strait Islander incarceration and/or offending, including rehabilitation, therapeutic alternatives and culturally appropriate community led solutions,
- the impacts of incarceration on Aboriginal and Torres Strait Islander peoples, including in relation to employment, housing, health, education and families, and
- the broader contextual factors contributing to Aboriginal and Torres Strait Islander incarceration including:
- the characteristics of the Aboriginal and Torres Strait Islander prison population,
- the relationships between Aboriginal and Torres Strait Islander offending and incarceration and inter‑generational trauma, loss of culture, poverty, discrimination, alcohol and drug use, experience of violence, including family violence, child abuse and neglect, contact with child protection and welfare systems, educational access and performance, cognitive and psychological factors, housing circumstances and employment, and
- the availability and effectiveness of culturally appropriate programs that intend to reduce Aboriginal; and Torres Strait Islander offending and incarceration.
- In undertaking this Inquiry, the ALRC should identify and consider other reports, inquiries and action plans including but not limited to:
- the Royal Commission into Aboriginal Deaths in Custody,
- the Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report 1 August 2017),
- Senate Standing Committee on Finance and Public Administration’s Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services,
- Senate Standing Committee on Community Affairs’ inquiry into Indefinite Detention of People with Cognitive and Psychiatric impairment in Australia,
- Senate Standing Committee on Indigenous Affairs inquiry into Harmful Use of Alcohol in Aboriginal and Torres Strait Islander Communities,
- reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner,
- the ALRC’s inquiries into Family violence and Family violence and Commonwealth laws, and
- the National Plan to Reduce Violence against Women and their Children 2010-2022.
The ALRC should also consider the gaps in available data on Aboriginal and Torres Strait Islander incarceration and consider recommendations that might improve data collection.
- In conducting its inquiry the ALRC should also have regard to relevant international human rights standards and instruments.
- In undertaking this inquiry, the ALRC should identify and consult with relevant stakeholders including Aboriginal and Torres Strait Islander peoples and their organisations, state and territory governments, relevant policy and research organisations, law enforcement agencies, legal assistance service providers and the broader legal profession, community service providers and the Australian Human Rights Commission.
- The ALRC should provide its report to the Attorney-General by 22 December 2017.