Submission to the Expert seminar on Indigenous Peoples and the administration of justice
Madrid, Spain, 12-14 November 2003
Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission of Australia
Issue 1: An overview of the current status in addressing Indigenous peoples contact with criminal justice processes in Australia
This submission is made by the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of the Human Rights and Equal Opportunity Commission (HREOC) of Australia. HREOC is Australia’s national human rights institution established by a law of the federal Parliament and operating in compliance with the ‘Paris Principles’ for national institutions for the promotion and protection of human rights. 
The Social Justice Commissioner has an independent monitoring role on the impact of government activity on the exercise and enjoyment of human rights by Australia’s Indigenous peoples. The Commissioner reports annually to Australia’s federal Parliament on the status of enjoyment of Indigenous human rights (the Social Justice Report) and the impact of native title legislation on the enjoyment of Indigenous human rights (the Native Title Report). Reports to federal Parliament and other research activities are available at www.humanrights.gov.au/social_justice/.
There are estimated to be 458,500 Aborigines and Torres Strait Islander peoples in Australia. This constitutes approximately 2.4% of the total Australian population.  Despite this, Indigenous peoples have regularly constituted over 20% of the adult prison population and over 40% of juveniles in detention since 1997.
There remains significant concern among governments in Australia at this situation. There are also many initiatives currently underway aimed at reducing the over-representation of Indigenous people in criminal justice processes. The Social Justice Commissioner has evaluated progress in addressing these issues through reports to Australia’s federal Parliament. 
The Social Justice Commissioner has prepared three submissions for this workshop and the Special Rapporteur. This first submission provides a general overview and is divided into the following sections:
- The findings of the Royal Commission into Aboriginal Deaths in Custody;
- An overview of progress in implementing the Royal Commission and current rates of incarceration and contact with criminal justice processes;
- The socio-economic status of Indigenous peoples and non-discrimination; and
- An over view of developments in partnership approaches with governments to the administration of justice in Australia.
A second submission addresses the following issues:
- Specific issues faced by Indigenous women in the administration of justice;
- Public order laws and the exercise of police discretion;
- Mandatory sentencing schemes; and
- Juvenile diversionary programs in Australia and best practice standards for Indigenous peoples.
A third submission provides an overview of recent developments in the recognition of Indigenous customary law and the development of Indigenous community justice mechanisms.
This submission concludes with an appendix of concluding observations of the United Nations human rights committees on the administration of justice and Indigenous peoples in Australia.
i) The findings of the Royal Commission into Aboriginal Deaths in Custody (1991)
A wide-ranging inquiry was conducted into issues relating to the contact of Indigenous peoples with the criminal justice system in Australia from 1989 – 1991. The Royal Commission into Aboriginal Deaths in Custody was established to investigate the deaths of 99 Indigenous people in the custody of police, prison or juvenile detention centres between 1 January 1980 and 31 May 1989. The five volume national report of this inquiry remains the most extensive examination of the causes and underlying factors relating to Indigenous peoples’ contact with criminal justice processes. 
The Royal Commission found that in relation to each of the Aboriginal people whose deaths were considered, ‘facts associated… with their Aboriginality played a significant and in most cases dominant role in their being in and dying in custody’ . There was, however, no evidence of an overall pattern of abuse, neglect or racism common to the deaths. Instead, the Royal Commission concluded that:
Aboriginal people in custody do not die at a greater rate than non-Aboriginal people in custody. However, what is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community … 
In other words, Indigenous people died in custody in great numbers because there were in custody in great numbers. The recommendations of the report focused on the necessity to reduce Indigenous over-representation at every stage of the criminal justice system if deaths in custody were to be prevented.
The Royal Commission saw that this task lay at two levels – first, ‘and in some ways the most immediate and in many ways the least difficult, is at the level of the criminal justice system itself’ . The report examined the processes of the criminal justice system from the initial point of contact with the police through to the point of sentencing, as well as the practices of coroners following a person’s death.
Key factors identified by the Royal Commission in this regard were the often petty nature of much contact with the police and the way that this contact escalated into more serious offending and contact – with particular concern expressed at the ‘crucial importance which detention for public drunkenness occupies in Aboriginal custodial over-representation’ ,  as well as other forms of public order regulation. The key principle which underpinned the recommendations of the Commission in this regard was that imprisonment should be a measure of last resort, with the use of alternatives to custody and diversionary mechanisms where appropriate. 
A focus on the criminal justice system alone, however, was not going to change the overall life circumstances which drew Indigenous people into the criminal justice system’s web, and the report argued that:
the more fundamental causes for the over-representation of Aboriginal people in custody are not to be found in the criminal justice system but in those factors which bring Aboriginal people into conflict with the criminal justice system in the first place... the most significant contributing factor is the disadvantaged and unequal position in which Aboriginal people find themselves in society – socially, economically and culturally . 
The report argued that the current circumstances of Indigenous people in this country are a direct consequence of the history of colonisation. This history, the Royal Commission noted, was one of:
deliberate and systematic disempowerment of Aboriginal people starting with dispossession of their land and proceeding to almost every aspect of their life… (with) every turn in the policy of government and the practice of the non-Aboriginal community… postulated on the inferiority of Aboriginal people… Every step of the way is based upon an assumption of superiority and every new step is an entrenchment of that assumption  … Aboriginal peoples were never treated as equals and certainly relations between the two groups were conducted on the basis of inequality and control’ . 
This inequality manifested itself greatest at the point of contact between Indigenous and non-Indigenous societies – namely, through policing and the criminal justice system.
Addressing Indigenous over-representation in the criminal justice system in a lasting manner therefore required fundamental change to the existing relationship between the mainstream society and Indigenous communities. It required that the control over Indigenous people’s lives be removed from the public institutions of the mainstream society, particularly those formalised through the police and criminal justice system, and that the unequal basis of the relationship be remedied by addressing the profound economic, social and cultural disadvantage experienced by Indigenous peoples.
ii) Progress in Australia since the Royal Commission into Aboriginal Deaths in Custody
The Royal Commission made 339 recommendations for reforming the criminal justice system and to address the underlying causes of Indigenous contact. Over seven years, each government in Australia submitted an annual implementation report on how it was addressing the recommendations of the Royal Commission. An additional $400 million was allocated for implementation by the federal government.
In the twelve years since the Royal Commission reported there have been some advances in the situation of Indigenous people and the administration of justice. Major advances in response to the Royal Commission include:
- The establishment of Aboriginal Justice Advisory Committees to provide scrutiny of state and territory governments on criminal justice issues from an Indigenous perspective ; 
- Improvements in coronial, court and police statistical collection systems. A major initiative in this regard has been the introduction of the Australian Institute of Criminology’s Deaths in Custody Monitoring Program, which provides an annual report on all incidents of deaths in custody in Australia (disaggregated on a number of grounds, including Indigenous status) ; 
- The development of nationally accredited training programs for Aboriginal workers in criminal justice issues by the Human Rights and Equal Opportunity Commission. 
However, the trend over the past twelve years has been for Indigenous peoples’ contact with criminal justice processes to increase rather than decrease, with minimal improvements in the rates of deaths in custody of Indigenous people.
In 1991, at the time of the Royal Commission, Indigenous people made up 14% of the total prison population. Since 1991, the Indigenous prison population has grown by an average of 8% per year (compared to 3% per year for non-Indigenous people). The most recent figures show that consistently since 1999 Indigenous people constitute 20% of the prison population.  Expressed as a rate of over-representation, Indigenous people nationally are currently incarcerated at 16 times the rate for non-Indigenous people in Australia. 
A recent study in the state of New South Wales demonstrates the extent of contact of Indigenous people with criminal justice processes. Between 1997 and 2001, a total of 25,000 distinct Indigenous people appeared in a NSW Court charged with a criminal offence. This constitutes 28.6% of the total NSW Indigenous population. In the year 2001 alone, nearly one in five Indigenous males in NSW appeared in Court charged with a criminal offence. For Indigenous males aged 20-24 years, this rate increased to over 40%. 
This situation is not unique to NSW. The rate of over-representation of Indigenous people in Western Australia is 22 times the non-Indigenous rate . Recent statistics for the Northern Territory also indicate that Aboriginal people constitute between 75-78% of all prisoners, and up to 82% of juveniles in detention in the Territory in the past year. 
Indigenous juveniles (up to age 18) remain over-represented in criminal justice processes. In 2000, they were in juvenile corrections at a rate 15.5 times that of non-Indigenous juveniles .  This compares to a rate of 13 times the non-Indigenous rate in 1993. Since 1997, Indigenous juveniles have consistently constituted 42% of all juveniles in detention nationally .  One of the most important recommendations of the Royal Commission into Aboriginal Deaths in Custody had called on governments and Aboriginal organisations to:
recognize that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organizations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems, and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families or communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. 
Since the Royal Commission, the greatest relative increase in incarceration has been for Indigenous women. The Indigenous female prison population increased by 262% between 1991 and 1999 (compared to an increase in non-Indigenous women of 185%). In December 2002, Indigenous women were incarcerated at a rate 20 times that of non-Indigenous women . The findings of a review conducted by the Social Justice Commissioner into the situation of Indigenous women’s contact with criminal justice processes are discussed further below.
In the decade from 1990-1999, 115 Indigenous people died in custody. This compared to 110 people in the period leading to the Royal Commission (ie, 1980-1989). This constitutes a slight improvement from 4.4 deaths per 100,000 people to 3.8 deaths per 100,000 over the decade. A significant feature of these deaths was that there were significantly fewer deaths in police custody (as opposed to in prisons) which tends to indicate that the implementation of recommendations of the Royal Commission relating to conditions and design of police custody had some impact . 
Despite these improvements, Indigenous deaths in custody over the past decade still represented 18% of all deaths in custody. This figure has risen since 2000 to 20% of all deaths in custody. 
In reporting on this situation to the federal Parliament in 2001 I stated:
The lack of concern and urgency from governments to rectify this situation is distressing. As the Royal Commission stated, this situation would not be tolerated it if occurred in the non-Indigenous community. 
iii) The socio-economic status of Indigenous peoples and non-discrimination
The Royal Commission into Aboriginal Deaths in Custody concluded that the over-representation of Indigenous people in the criminal justice system is inextricably linked to their socio-economic status. The Report found that ‘the single significant contributing factor to incarceration is the disadvantaged and unequal position of Aboriginal people in Australian society in every way, whether socially, economically or culturally.’ 
Indigenous Australians remain the most disadvantaged of all Australians. There are clear disparities between Indigenous and non-Indigenous Australians across all indicators of quality of life. In August 2000, the Committee on Economic, Social and Cultural Rights expressed concern ‘that, despite the efforts and achievements of the State party, the indigenous populations of Australia continue to be at a comparative disadvantage in the enjoyment of economic, social and cultural rights, particularly in the field of employment, housing, health and education’.
The Committee Against Torture also expressed concern in November 2000 and recommended that:
The State party continue its efforts to address the socio-economic disadvantage that, inter alia, leads to a disproportionate number of indigenous Australians coming into contact with the criminal justice system
The following table provides an overview of key indicators of quality of life for Indigenous Australians. 
Indicator Selected statistics Life expectancy Indigenous people live approximately 20 years less than non-Indigenous people. Indigenous males 56.3 years, non-Indigenous 77 years. Indigenous females 62.8 years, non-Indigenous 82.4. Child protection Indigenous children are over-represented in care and protection systems across Australia by 3.2 times the non-Indigenous rate. This over-representation increases with the seriousness of the intervention, with Indigenous children placed under care and protection orders and out-of-home care at 5.9 and 6.3 times the non-Indigenous rates respectively. Income Average gross household income for Indigenous persons was $364 per week, or 62% of the corresponding income for non-Indigenous persons. Unemployment and welfare 22% of Indigenous males are unemployed compared to 8% of Indigenous males; and 18% of Indigenous females compared to 7% of non-Indigenous females. This does not include Indigenous people participating in Community Development Employment Projects (a ‘work for the dole’ equivalent program). 1 in 6 Indigenous people classified as employed work on CDEP. Education 32% of Indigenous Australians did not complete year 10 schooling, compared to 18% of non-Indigenous Australians. 18% of Indigenous Australians did complete school to year 12, compared to 41% of non-Indigenous Australians. Housing Home ownership rates among Indigenous households are significantly lower than non-Indigenous households (32% compared to 69%). Households with Indigenous persons were more than twice as likely to be living in rental accommodation than non-Indigenous households. These are relevant factors in explaining inter-generational poverty among Indigenous people. Teenagers (aged 15-19 years) at risk of poverty 44% of all Indigenous teenagers are likely to be at risk of entering into poverty, compared to 15% of non-Indigenous teenagers. This situation worsens further in remote and very remote regions of Australia. The rate of risk of poverty is calculated according to the number of people that are either not in full-time work or education or combining part time work and education.
A worrying trend is that there has been limited progress in improving the situation of Indigenous peoples over the past five years. Recent Census data indicates that many indicators of socio-economic well-being have either declined or have not grown as quickly as for the non-Indigenous population (hence increasing the inequality gap between Indigenous and non-Indigenous Australians)  . This remains a significant contextual factor for addressing Indigenous peoples contact with criminal justice processes. 
iv) Partnership agreements with Indigenous peoples
A focus of Indigenous organisations and Australian governments in recent years has been the entering into partnership agreements for service delivery to Indigenous peoples. Agreements have been entered into setting out the principles that underpin the relationship between Indigenous people and the relevant government, and specific Justice Agreements have been developed in a number of States. For example:
- An Aboriginal
Justice Agreement has been signed by the NSW Attorney-General which
seeks to reduce Aboriginal people’s involvement in the criminal
justice system and improve community safety for Aboriginal people. An
Aboriginal Justice Plan, setting out key priority areas and commitments
is being finalised following consultation and negotiation with Indigenous
- The Northern
Territory Government recently signed a communiqué committing
the Government to work in partnership with peak Indigenous organisations
and communities through the development of an Aboriginal justice plan
to reduce overrepresentation in the criminal justice system. The justice
action plan is to address the following objectives: Preventing crime;
Improving community safety; Improving access to justice related services,
including services for victims; Improving access to bail; Improving
access to diversionary programs; Increasing community based sentencing
options and non-custodial sentencing options; and Increasing the rate
of participation of Indigenous people in the justice system.
- The Queensland
government has established the Ten Year Partnership. It commits the
Government to work with Aboriginal and Torres Strait Islander peoples
to improve standards of living over the next ten years. Under the partnership,
there are eight key areas to be addressed, namely: Justice; Family violence;
Reconciliation; Human services; Service delivery; Economic development;
Community governance; and Land heritage and natural resources.
- The Victorian government has signed an Aboriginal Justice Agreement, developed through negotiation with Indigenous people. The Agreement is supported by an Aboriginal Justice Forum, where senior members of the Koori communities sit with the most senior Victorian Government agency representatives in monitoring, evaluating and steering the implementation of the Justice Agreement.
These agreements have not been in place for sufficient time for there to be any concrete results or reductions in the contact of Indigenous peoples with criminal justice processes. They offer much potential for adopting a more collaborative approach to addressing Indigenous crime and its impact on Indigenous communities.
Appendix 1: Concluding observations of human rights committees on Australia relating to Indigenous peoples and the administration of justice
Committee against Torture: November 2000
53. The Committee recommends that:
(g) The State party continue its efforts to address the socio-economic disadvantage that, inter alia, leads to a disproportionate number of indigenous Australians coming into contact with the criminal justice system (UN Doc: A/56/44, paras 47-53, 21 November 2000)
Committee on Economic, Social and Cultural Rights: August 2000
15. The Committee expresses its deep concern that, despite the efforts and achievements of the State party, the indigenous populations of Australia continue to be at a comparative disadvantage in the enjoyment of economic, social and cultural rights, particularly in the field of employment, housing, health and education (UN Doc E/C.12/1/Add.50, 1 September 2000)
Human Rights Committee: July 2000
With respect to article 1 of the Covenant, the Committee takes note of the explanation given by the delegation that rather than the term "self-determination", the Government of the State party prefers terms such as "self-management" and "self-empowerment" to express domestically the principle of indigenous peoples' exercising meaningful control over their affairs. The Committee is concerned that sufficient action has not been taken in that regard. The State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources (art. 1, para. 2).
Legislation regarding mandatory imprisonment in Western Australia and the Northern Territory, which leads in many cases to imposition of punishments that are disproportionate to the seriousness of the crimes committed and would seem to be inconsistent with the strategies adopted by the State party to reduce the over-representation of indigenous persons in the criminal justice system, raises serious issues of compliance with various articles of the Covenant. The State party is urged to reassess the legislation regarding mandatory imprisonment so as to ensure that all Covenant rights are respected (UN Doc: A/55/40, paras.498-528, 24 July 2000)
Committee on the Elimination of Racial Discrimination: March 2000
15. The Committee notes with grave concern that the rate of incarceration of indigenous people is disproportionately high compared with the general population. Concern is also expressed that the provision of appropriate interpretation services is not always fully guaranteed to indigenous people in the criminal process. The Committee recommends that the State party increase its efforts to seek effective measures to address socio-economic marginalization, the discriminatory approach to law enforcement and the lack of sufficient diversionary programmes.
16. The Committee expresses its concern about the minimum mandatory sentencing schemes with regard to minor property offences enacted in Western Australia, and in particular in the Northern Territory. The mandatory sentencing schemes appear to target offences that are committed disproportionately by indigenous Australians, especially juveniles, leading to a racially discriminatory impact on their rate of incarceration. The Committee seriously questions the compatibility of these laws with the State party's obligations under the Convention and recommends to the State party to review all laws and practices in this field.
18. The Committee acknowledges the efforts being made to increase spending on health, housing, employment and education programmes for indigenous Australians. Serious concern remains at the extent of the continuing discrimination faced by indigenous Australians in the enjoyment of their economic, social and cultural rights. The Committee remains seriously concerned about the extent of the dramatic inequality still experienced by an indigenous population that represents only 2.1 per cent of the total population of a highly developed industrialized State. The Committee recommends that the State party ensure, within the shortest time possible, that sufficient resources are allocated to eradicate these disparities. (UN Doc: CERD/C/304/Add.101, 19 April 2000)
Committee on the Rights of the Child: October 1997
13. While noting the information provided by the delegation of the State party on a number of programmes to raise health standards for Aboriginal and Torres Strait Islander children and the State party's intention to start a two-year anti-racism campaign, the Committee is nonetheless concerned about the special problems still faced by Aboriginals and Torres Strait Islanders, as well as by children of non-English-speaking backgrounds, with regard to their enjoyment of the same standards of living and levels of services, particularly in education and health.
22. The Committee is also concerned about the unjustified, disproportionately high percentage of Aboriginal children in the juvenile justice system, and that there is a tendency normally to refuse applications for bail for them. The Committee is particularly concerned at the enactment of new legislation in two states, where a high percentage of Aboriginal people live, which provides for mandatory detention and punitive measures of juveniles, thus resulting in a high percentage of Aboriginal juveniles in detention.
32. The Committee encourages the State party to take further steps to raise the standards of health and education of disadvantaged groups, particularly Aboriginals, Torres Strait Islanders, new immigrants, and children living in rural and remote areas. The Committee is also of the view that there is a need for measures to address the causes of the high rate of incarceration of Aboriginal and Torres Strait Islanders children. It further suggests that research be continued to identify the reasons behind this disproportionately high rate, including investigation into the possibility that attitudes of law enforcement officers towards these children because of their ethnic origin may be contributing factors. (UN Doc: CRC/C/15/Add.79, 10 October 1997)
Assembly Resolution 48/134, 20 December 1993, Annex.
2. Australian Bureau of Statistics and Australian Institute for Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, ABS and AIHW, Canberra 2003, p13.
3. See, for example: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001, HREOC Sydney 2001, www.humanrights.gov.au/social_justice/sjreport_01/index.html.
4. The reports are available online at: www.austlii.edu.au/au/other/IndigLRes/rciadic/index.html.
5. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1, AGPS Canberra 1991, p1.
6. ibid, p6.
7. ibid, p12.
8. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 3, AGPS Canberra 1991, p3.
9. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1, op.cit, p15.
10. ibid, pp 9-10.
11. ibid, p10.
12. See the website of the NSW Aboriginal Justice Advisory Committee: www.lawlink.nsw.gov.au/ajac.
13. See: http://www.aic.gov.au/research/dic/
14. See further: www.humanrights.gov.au/social_justice/nilac/.
15. Australian Bureau of Statistics, Prisoners in Australia – 30 June 2002, Series: 4517.0, ABS Canberra 2003, www.abs.gov.au.
16. Australian Bureau of Statistics, Corrective Services – June 2003 Quarter, Series 4512.0, ABS Canberra 2003, pp2-3, www.abs.gov.au.
17. Weatherburn, D, Lind, B, and Hua, J, ‘Contact with the New South Wales court and prison systems: The influence of age, Indigenous status and gender’ (2003) 78 Crime and Justice Bulletin (NSW Bureau of Crime Statistics and Research) 1, pp4-5, .
18. Australian Bureau of Statistics, Corrective Services – June 2000 www.lawlink.nsw.gov.au/bocsar1.nsf/pages/cjb78text 3 Quarter, op.cit, p3.
19. Northern Territory Government, Northern Territory Quarterly Crime and Justice Statistics, Issue 4: June Quarter 2003, Office of Crime Prevention, Department of Justice, Darwin 2003, www.nt.gov.au/justice/ocp/pages/stats.shtml.
20. Australian Institute of Criminology, Persons in juvenile corrective institutions 1981-2000, AIC Canberra 2001, Table 3 and Figure 2.
21. Australian Bureau of Statistics and Australian Institute for Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, op.cit, p109.
22. Royal Commission into Aboriginal Deaths in Custody, National Report, Volume 2, AGPS, Canberra, 1991, Recommendation 62, p252.
23. Australian Bureau of Statistics, Corrective Services – December Quarter 2002, SABS Canberra 2003, p22.
24. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001, op.cit, pp15-16.
25. Collins, L and Ali, M, Deaths in Custody Australia – 2002 National Deaths in Custody Program (NDICP) Annual Report, Australian Institute of Criminology, Canberra 2003, p25.
27. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1, op.cit, p15.
28. This table is adapted from Aboriginal and Torres Strait Islander Commission, Submission to the Senate Community Affairs Committee Inquiry into poverty and financial hardship in Australia, July 2003, www.aph.gov.au/senate/committee/clac_ctte/poverty/submissions/sub244.doc and Australian Bureau of Statistics and Australian Institute of Health and Welfare, The health and welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2003, op.cit.
29. Altman, J and Hunter, B, ‘Monitoring ‘practical’ reconciliation: Evidence from the reconciliation decade, 1991-2001’, Centre for Aboriginal Economic Policy Research Discussion Paper 254/2003, Australian National University, Canberra 2003, www.anu.edu.au/caepr/discussion2.php#254.
30. For a critique of the current approach to addressing Indigenous disadvantage see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, Chapters 3 and 4, www.humanrights.gov.au/social_justice/sjreport_02/index.html; Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001, Chapter 6, op.cit; Senate Legal and Constitutional References Committee, Reconciliation: Off Track, Parliament of Australia, Canberra 2003, www.aph.gov.au/senate/committee/legcon_ctte/index.htm.
Last updated 7 November 2003.