Indigenous Issues

The Australian Bar Association is committed to advancing and advocating for the legal rights of Indigenous Australian. The ABA regularly responds to requests for advice and submissions to assist in the formulation of policies with respect to Indigenous Australians, the Australian legal system and the legal profession. Issues include, but are not limited to, native title, land rights, customary law, legal education, access to justice, Indigenous incarceration and racial discrimination.

The ABA has a dedicated Indigenous Issues committee made up of barristers from across Australia with specialist knowledge and experience of these issues. The Indigenous Issues committee members are:

• Chair: Phillip Boulton SC (NSW)
• Joe Bowler (SA)
• Nathan Jarro (QLD)
• Hylton Quail (WA Tom Keely SC (VIC)

Indigenous incarceration

Recently, the ABA has proactively campaigned for law reform measures to tackle Australia’s Indigenous incarceration rates. Among the proposals, the ABA has strongly recommended that mandatory sentencing laws, that have the biggest impact with minimum effect on Indigenous people, be amended or removed, and funds saved from housing prisoners redirected into programs that rehabilitate and reduce recidivism.

The current situation:

• Incarceration rates of Indigenous Australians are at least 16 times higher than the rate for non-ATSI Australians.
• Indigenous children between 10-14 years of age are 30 times more likely to be incarcerated than their non-indigenous peers.
• Indigenous women are almost 20 times more likely to be incarcerated than non-indigenous women.

A recent report by the Australian Institute of Criminology found a key factor contributing to the disproportionate Indigenous over-representation is that of State and Territory government bail and sentencing policies, particularly in jurisdictions with high populations of Indigenous people where mandatory sentencing laws operate, and individuals are often incarcerated for trivial offences.

Mandatory sentencing contributes to a higher rate of imprisonment which often unnecessarily increases the costs in the administration of justice. Under mandatory sentencing laws, a defendant has no motivation to plead guilty as there is no chance of a reduced sentence. This means that potentially more contested cases appear before the courts requiring the use of extra resources and producing further court delays.

The Australian Bar Association proposes the following:

• Amend or remove mandatory sentencing laws that have the biggest impact on Indigenous people but deliver minimum effects, such as minor assault, driving offences and minor theft.
• Review fine default imprisonment: Existing mechanisms for the enforcement of fines are unsatisfactory. Imprisonment in default of payment is unjust, unfair to poor offenders, dangerous to vulnerable offenders, expensive and disproportionate in its effect on indigenous offenders.
• Invest in Justice Reinvestment: channel money that would have been spent on housing prisoners into community projects aimed at keeping Indigenous offenders out of prison. Oregon (US) experienced a 72% drop in juvenile incarceration after the state reinvested $241 million from prison spending to treatment programs and improved probation and parole services.

ABA Media Releases regarding Indigenous issues:

“ALRC examination into Indigenous incarceration rates is a national priority” says ABA President – October 2016

Australian Bar Association responds to alarming BOCSAR statistics that shows 40% of Indigenous defendants on remand do not go on to receive custodial sentences - September 2016

ABA urges Northern Territory to reconsider proposed bail legislation – May 2016

 “Amend mandatory sentencing and watch Indigenous incarceration rates fall” says ABA President – April 2016