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

The President of the Australian Bar Association (ABA), Patrick O’Sullivan QC, is calling for national co-operation to tackle the alarming and disproportionate rates of Indigenous incarceration. The ABA is proposing 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.

“Australia’s Indigenous incarceration rate is one of the most challenging human rights issues facing the country today. The proportion of Indigenous prisoners has almost doubled over the 20 years since the Royal Commission into Aboriginal Deaths in Custody (RCADIC) and is a matter of deep concern to the Australian Bar Association,” said ABA President, Patrick O’Sullivan QC.

The ABA President has this week met with the Federal Attorney-General George Brandis QC to discuss the ABA’s proposals and to encourage the Federal Government to commit to action that will deliver better justice outcomes for all. The ABA President will also meet with other State Attorney’s General throughout the year, where this issue will continue to be a high priority for the ABA.

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.

“Across the country, Indigenous people comprise of more than a quarter of the prison population despite only accounting for almost 3 per cent of the national population. The situation is amplified in the Northern Territory where the rate of indigenous people in prison is closer to 90 per cent,” said Patrick O’Sullivan QC.

“It is a shocking fact that an Indigenous young person who has served a prison sentence is more likely to return to prison than finish school. And on any given night in Australia, over half of all young people in detention are Indigenous.”

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 appears a significantly attractive option to reduce crime and provide consistency in sentencing, however a lack of evidence exists as to the efficacy as a deterrent or the ability to decrease crime, particularly around minor theft, driving offences and minor assault.”

“We only need to look at the experience in the Northern Territory where property crime offences increased during the initial mandatory sentencing regime for such offences, and decreased after its repeal.”

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.

“There are on average 30,000 prisoners in Australia at any one time, a quarter of them Indigenous, costing the country $3 billion a year. Even a 10 percent reduction in the Indigenous imprisonment rate would save more than $10 million a year.”

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. (See case study Ms Dhu)
  • 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.

“It makes moral and financial sense to reduce the number of Indigenous people in prison. The over-representation of Indigenous people incarcerated is a national disgrace. It is time to take action that addresses the problem and delivers better justice outcomes for Indigenous Australians and the country as a whole.”


Gloria – assault offences

The Territory Government increased minimum jail times for offenders while restricting judge’s rights to suspend sentences for certain crimes. In 2014, a young woman and mother of four” Gloria” faced jail. She admitted to drunkenly hitting another woman who taunted her about the death of her mother. Under the Territory’s new laws, every first-time offender convicted of a violent offence faces three months in jail. It’s 12 months for repeat offenders. Magistrates’ hands have been tied. “Gloria” has only appeared in court once before for a minor offence. Before the new laws were brought in, she most likely would have been released with a fine.

Mandatory sentencing – driving offences

In courts across Australia, magistrates routinely issue fines and disqualifications for people charged with unlicensed driving. But for many Indigenous people, these court appearances can be the first step towards jail. In NSW alone, recent figures show more than 1,000 Indigenous people were doing prison time for offences related to unlicensed driving.

In rural communities, Indigenous people are suspended from driving at a much higher rate than the rest of the population. For many, it’s the first step towards jail. Now, in NSW, mandatory sentencing is likely to have a further dramatic impact on prison numbers.

Eamonn  – Traffic Laws

Eamonn Coe Masters first came to the attention of police when he was young for driving without a licence.  Then when he was 16 he went for his licence test and started driving around and racing cars. He was charged under his Father’s surname (Masters) but the name on his birth certificate was different. Eamonn did not know as he could not read. The police knew him as Eamonn Coe despite his licence saying Eamonn Masters.  He was disqualified from driving.

Years later, believing his disqualification was served, he approached the Roads and Traffic Authority and was given the all clear and passed his test.  Later, the police pulled him over alleging he did not have a licence. Eamonn showed his licence from the RTA to the police and the Police refused to believe him stating he was still disqualified under another name. He was further charged with a driving offence and under the mandatory sentencing laws, he was sent to jail and disqualified from driving until 2022.

Ms Dhu – fine default imprisonment

Ms Dhu was arrested by police to be imprisoned for four days in August 2014 for unpaid fines totally $3622. Ms Dhu died two days into her incarceration at Western Australia’s South Hedland Police Station.

In 2013, 1358 people were imprisoned for fine default and for no other reason. 16 percent of Indigenous people who entered prison that year were there only for fine default.

View the PDF here