• Background
• Terminology
• Background to sentencing of Aboriginal offenders
• Other relevant inquiries
• The international scene
• Statement of commitment to Aboriginal people
• Nature and conduct of the Commission’s inquiry
• The Commission’s approach

1.1 On 12 April 1995, the then Attorney General, the Hon Jeff Shaw QC, referred the reform of sentencing law to the New South Wales Law Reform Commission (the “Commission”).¹ For the purposes of managing such a review, the Commission divided the reference into three phases:²

• The first phase, an evaluation of the general principles of sentencing law in New South Wales, was the subject of the Commission’s Report entitled Sentencing.³
• The second phase, of which this Report is the first publication, involves a review of the particular problems which arise in sentencing groups of offenders who require special consideration.
• The third phase will involve the review and rationalisation of the maximum penalties prescribed by statute in New South Wales.

1.3 This Report predominantly considers adult Aboriginal offenders, both male and female. Consideration of the sentencing of juvenile Aboriginal offenders is deferred to the Commission’s review of general juvenile sentencing practices to be conducted at a later stage of the reference.

TERMINOLOGY

1.4 The terminology used by the Commission in this Report varies, reflecting inconsistency and diverse terms used in sources. “Aboriginal” in most contexts should be taken to include all Indigenous people and communities. The term “Indigenous” encompasses both Aboriginal people and people from the Torres Strait Islands. While the Commission acknowledges that people with Torres Strait Island origins are a separate people with a different heritage, they are not distinguished separately in this Report because, in the context of the Commission’s recommendations for sentencing, it is not considered necessary to make such a distinction. Further, the Commission’s consultations did not indicate the need for separate consideration.

1.5 Over the years, the law has determined who is to be defined as an Aboriginal person for various purposes.⁵ The Commission is of the view, however, that such a definition is unnecessary for the purpose of sentencing law. Where Aboriginality is raised as an issue in court, its relevance should be assessed on a case-by-case basis.

BACKGROUND TO SENTENCING OF ABORIGINAL OFFENDERS

1.6 The question may be asked: why accord Aboriginal offenders special consideration? In comparison with their percentage of the general population, Aboriginal people are over-represented in the criminal justice system, with that disparity increasing over time. Nationally, Indigenous people constitute 2.1 per cent of the total Australian population.⁶ However, in 1998, the National Prisoner Census showed that 18.8% of all prisoners were Indigenous.⁷ The imprisonment rate for Indigenous males was 12 times higher than the rate for all males, and the rate for Indigenous females was 14 times higher than for all females.⁸ The Australian Bureau of Statistics (“ABS”) reported that, on the night of 1 December 1999, New South Wales had the highest number of Indigenous prisoners of any State or Territory in Australia (1,117 out of 3,916 nationally).⁹ In New South Wales Local Courts, Indigenous people convicted of an offence are more likely to be sentenced to a term of imprisonment: in 1999, 15.2% of Indigenous offenders received the penalty of imprisonment compared with 6.6% of offenders overall.¹⁰

1.7 Studies have shown that Aboriginal people are more likely than others to be charged with minor offences, particularly public order offences such as offensive language or behaviour, and resisting arrest.¹¹ During 1998, a total of 6,558 people were prosecuted for offensive language or offensive conduct in New South Wales. Of those, 1350 (or 20.59%), were Aboriginal people.¹² Studies have shown that these relatively minor offences have serious long-term consequences for many Aboriginal people and communities, as they increase the likelihood of further contact with the criminal justice system.¹³

1.8 Similarly, there is evidence suggesting higher rates of recidivism in Aboriginal offenders.¹⁴ The Royal Commission into Aboriginal Deaths in Custody (“RCIADIC”) found that many Aboriginal people presented to the courts for sentencing with prior convictions, and that Aboriginal recidivism was a matter of serious concern.¹⁵ The levels of over-representation of Aboriginal youth now seen in the juvenile justice system suggest even greater problems in the future.¹⁶

1.9 Aboriginal people are also dying in custody in increasing numbers.¹⁷ The Aboriginal and Torres Strait Islander Social Justice Commissioner reported that there have been 147 Indigenous deaths in custody since the Royal Commission into Aboriginal Deaths in Custody (“RCIADIC”), compared with 99 deaths in the previous decade.¹⁸

Explaining over-representation

1.10 Seeking to explain what may cause the disproportionate levels of involvement of Aboriginal people in the criminal justice system is of direct relevance to this Report. Explanations are complex; most identify a number of factors responsible, but differ as to the combinations of factors thought to be at work.¹⁹ Some interpretations attribute over-representation to discriminatory treatment at various stages within the criminal justice system, including sentencing. Intentional or unintentional bias is often asserted but difficult to evaluate in a systematic way.²⁰ Other explanations look to the incidence and patterns of offending,²¹ while many concentrate on the “underlying issues”, that is, those factors which bring Aboriginal people into conflict with the criminal justice system in the first place. At the 1997 National Summit on Indigenous Deaths in Custody, the Commonwealth and State and Territory Governments reaffirmed the position that addressing the underlying issues is fundamental to the achievement of long term solutions to Indigenous incarceration and deaths in custody.²²

1.11 The RCIADIC Report argued that the most significant contributing factor to over-representation was the socially, economically and culturally disadvantaged position of many Aboriginal people. They belong to a substantially alienated, marginalised, disempowered segment of Australian society. Indigenous people are frequently extremely disadvantaged in almost every aspect of society, especially in terms of life expectancy, health,²³ housing,²⁴ education,²⁵ employment and income.²⁶ High levels of violence and substance abuse are often experienced in many Aboriginal communities.²⁷

1.12 The Aboriginal Justice Advisory Council (“AJAC”) is of the view that, while some Government initiatives are helping to address the RCIADIC recommendations and are aimed at diverting people from the criminal justice system, other measures have the effect of increasing Aboriginal contact with the system.²⁸ AJAC maintains that truth in sentencing principles, the increase of police powers under laws such as the Crimes Amendment (Police and Public Safety) Act 1998 (NSW) and the Children (Protection and Parental Responsibility) Act 1997 (NSW), the failure to decriminalise offensive language, and the current police practice of targeting recidivists, impact disproportionately on Aboriginal people, increasing the likelihood of their involvement in the justice system.²⁹

Unique position of Indigenous Australians

1.13 Also relevant to the context in which Aboriginal people are sentenced is the unique position they occupy in the legal system as an Indigenous minority.³⁰ As Australia’s original inhabitants, members of Aboriginal communities exercised sovereignty, with their own system of land ownership and laws. Upon colonisation, that ownership of land was denied and systems of customary law displaced. Consequently, Aboriginal people have been disadvantaged in a way which distinguishes them from immigrant minorities.

1.14 Over the two centuries since colonisation, the criminal justice system has frequently served further to entrench the disadvantage of Aboriginal people. Rather than protecting them from unlawful violence, the legal system often criminalised and subjugated Aboriginal people.³¹ Aboriginal people have also faced legal, institutionalised racism, in relation to freedom of movement, employment, education and welfare.³²

1.15 The impact of colonisation continues to affect Indigenous people today:

Aboriginal people remember this history and it is burned into their consciousness …³³

[i]t is important that we understand the legacy of Australia’s history, as it helps to explain the deep sense of injustice felt by Aboriginal people, their disadvantaged status today and their current attitudes towards non-Aboriginal people and society.³⁴

1.17 This Report examines ways in which the criminal justice system can ensure offenders, when sentenced, are not disadvantaged by reason of their Aboriginality. No criminal justice system should create or perpetuate disadvantage. In the Commission’s view, recognition of cultural difference and accommodation of diversity is not inconsistent with equality before, and equal protection under, the law.³⁶

International obligations

1.18 Consideration of Aboriginal people’s involvement in the criminal justice system, as well as the broader social justice issues, should be viewed in the light of international conventions and obligations.³⁷ The International Covenant on Civil and Political Rights (“ICCPR”) and the International Convention on the Elimination of All Forms of Racial Discrimination, both ratified by Australia, call for equality before the law for minority groups. The right of Indigenous people to self-determination is enshrined in the ICCPR and the United Nations Draft Declaration on the Rights of Indigenous Peoples.³⁸ Though not formally part of the law of New South Wales, the principles such conventions embody should form a basis for the interpretation of our law and the development of government policy.³⁹

OTHER RELEVANT INQUIRIES

1.19 The Commission’s inquiries have been conducted in the context of several other significant inquiries and reports in recent years which impact on the sentencing of Indigenous offenders. They contain useful analyses and recommendations in relation to sentencing, and the underlying factors affecting Aboriginal over-representation in the criminal justice system. It could be argued that had the many sound recommendations in those reports been implemented, the need for this Report would have been significantly reduced. Our recommendations should be considered in conjunction with the following reports and inquiries.

Royal Commission into Aboriginal Deaths in Custody

1.20 Reducing the rate at which Aboriginal people were sentenced to prison was a principal focus of the landmark RCIADIC, conducted between 1987 and 1991. It investigated and reported on the deaths of some 99 Aboriginal people who had died while detained in police, prison or juvenile detention custody between 1980 and 1989, and on the underlying issues associated with the deaths. It was the RCIADIC’s conclusion that Aboriginal people are more likely than non-Aboriginal people to die in custody because they are more likely to be in custody.⁴⁰ The RCIADIC’s Final Report contained a total of 339 recommendations, many aimed at preventing deaths in custody, and others directed at eliminating the social, economic and cultural disadvantages that Aboriginal people suffer. The RCIADIC strongly emphasised the need for Aboriginal and Torres Strait Islander people to be fully involved in the implementation of its recommendations. Empowerment and self-determination were seen as key elements in overcoming disadvantage.⁴¹ This theme has been adopted by the Commission in relation to its inquiries into sentencing.

1.21 The section of the RCIADIC Report containing recommendations designed to reduce the rate of incarceration of Aboriginal people is particularly relevant to this Report. The RCIADIC Report considered how the court process, particularly sentencing, contributed to the rate of imprisonment. It drew attention to the way court processes could disadvantage Aboriginal people. For example, the Report analysed the way in which a person’s prior history of contact with the criminal justice system can impact on the sentence received, the problem of imprisonment for fine default, and the role that non-custodial sentencing options can play in reducing levels of incarceration. Principal recommendations called for enshrining in legislation the principle of imprisonment as a last resort;⁴² legislating to expunge past convictions from criminal records;⁴³ ensuring an adequate and appropriate range of non-custodial sentencing options for Aboriginal offenders; and providing for greater involvement of Aboriginal communities in sentencing.⁴⁴ Related to sentencing are recommendations about policing, arrest and bail practices, the use of diversionary strategies and policies for juveniles.

1.22 In its latest review of the Government’s implementation of the RCIADIC Report, AJAC criticised not only the Government‘s response to the Report, but also the RCIADIC recommendations themselves.⁴⁵ AJAC considered that, among other things, the recommendations focused on procedure rather than intended outcomes, leaving unaddressed broader questions concerning the underlying causes of Aboriginal contact with the criminal justice system, and the structural deficiencies in the way in which the system deals with Aboriginal offenders. In other respects, AJAC argued, the recommendations are so broad as to be meaningless.

Implementation of Royal Commission recommendations

1.23 Implementation by Governments of recommendations is monitored in numerous ways, including statistical collection by the Australian Institute of Criminology, regular reports by Governments, AJAC and the Deaths in Custody Watch Committees in each jurisdiction. The Aboriginal and Torres Strait Islander Commission (“ATSIC”) has reported on behalf of the Commonwealth Government, and also in specially commissioned reports.⁴⁶ The Aboriginal and Torres Strait Islander Social Justice Commissioner’s annual reports, and reports emanating from independent sources, including Amnesty International, also review progress on implementation.

1.24 In its latest implementation review, AJAC noted that, of the 229 RCIADIC recommendations that apply directly to New South Wales, approximately one half have not been implemented.⁴⁷ Of the other half, AJAC argued that the actual level of implementation must be questioned for lack of definable outcome or performance measures, or any sustained improvement. Implementation is apparently more effective in some areas than others. For example, AJAC reported that recommendations concerning coronial inquiries and custody practices have virtually all been implemented. The areas most neglected are those which apply to the whole of Government, and involve the inclusion of Aboriginal people in the development, delivery and evaluation of programs and services that affect them.⁴⁸

1997 Ministerial Summit

1.25 In July 1997, the Commonwealth Government convened a national Ministerial Summit on Indigenous Deaths in Custody to deal with strategies to reduce deaths in custody and the over-representation of Indigenous people within the criminal justice system. It was preceded by an Indigenous Summit in February 1997, which emphasised that governments should recognise the important role Indigenous people must play in the design and delivery of successful strategies and programs to reduce incarceration rates. Presented to the Summit were best practice examples from all jurisdictions. The recommendations made in this Report concerning the role of the Aboriginal community in sentencing are drawn from some of those examples.

1.26 The Ministerial Summit issued an Outcomes Statement⁴⁹ committing Governments, in partnership with Indigenous peoples, to develop strategic plans for funding and service delivery for Indigenous programs to address underlying social, economic and cultural issues, justice issues, customary laws, law reform and funding.

Other inquiries

1.27 Matters relevant to sentencing of Australia’s Indigenous people, and their involvement in the criminal justice system, have been the subject of investigation and report in numerous other inquiries. Prominent among those is the ALRC’s Report on The Recognition of Aboriginal Customary Laws.⁵⁰ The five reports produced by the former Aboriginal and Torres Strait Islander Social Justice Commissioner between 1993-1997,⁵¹ and the first report by the current Commissioner,⁵² deal with the issues underlying Indigenous imprisonment, as well as juvenile justice and diversionary strategies. Reports by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs also contain relevant recommendations.⁵³

1.28 Reports of the Australian National Committee on Violence⁵⁴ and the National Inquiry into Racist Violence⁵⁵ recommend means to deal with extreme levels of violence in some Aboriginal communities and the endemic problems of racist violence. Proposals relevant to aspects of sentencing of Aboriginal offenders are contained in numerous reports on general criminal justice issues such as juvenile justice,⁵⁶ female prisoners,⁵⁷ and the children of imprisoned parents.⁵⁸ Numerous studies into specific aspects of the involvement of Aboriginal people with the criminal justice system also deal with sentencing.⁵⁹

Bringing Them Home

1.29 In 1997, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families submitted its report, Bringing Them Home. The Human Rights and Equal Opportunity Commission (“HREOC”) conducted this inquiry into what has become known as “the Stolen Generations”, that is, the large numbers of Indigenous children forcibly removed from their families and communities for the greater part of the twentieth century. The Report highlights the effect of separation on individuals, the families and communities from whom they were taken, and on succeeding generations. In proposing minimum standards for treatment of Indigenous children, the Report recommended that custodial sentences should be a last resort, and that Indigenous organisations and communities play a major role in the sentencing of Indigenous juvenile offenders.

1.30 Many Aboriginal offenders (or their families) are members of the Stolen Generations. Its effect on contemporary Aboriginal people was frequently made known to the Commission during consultations. The inter-generational impact of removal policies on the mental health of individuals and communities, the parenting skills of those growing up in institutions, the loss of family and the sense of identity and heritage, and the residue of unresolved anger and grief in the Aboriginal community, is such that courts should be aware of its relevance in the lives of Aboriginal people being sentenced.⁶⁰

THE INTERNATIONAL SCENE

1.31 Australia is not unique in the manner in which its Indigenous population suffers from dispossession, and severe socio-economic disadvantage, alienation and extremely high levels of involvement in the criminal justice system.⁶¹ In Canada, several inquiries have considered strategies for improving the treatment of Indigenous people in the criminal justice system and developing policies more sensitive to the their traditional legal customs and cultures. The most recent was the Royal Commission on Aboriginal Peoples.⁶² The Governments of Alberta,⁶³ Manitoba⁶⁴ Saskatchewan⁶⁵ and Nova Scotia,⁶⁶ as well as the Law Reform Commission of Canada,⁶⁷ have also investigated these issues. In New Zealand, aspects of Indigenous justice systems have been examined, and, in the case of conferencing, adopted into the formal justice system.⁶⁸ One of the functions of the Law Commission of New Zealand is to consider the Maori perspective in developing proposals for reform.

1.32 The newly independent nations in the South Pacific have pluralist legal systems which retain Indigenous customary law systems for the majority Indigenous population, integrated in various ways into common or civil law systems. Local court systems in ex-colonial nations such as Papua New Guinea, Vanuatu, Tuvalu, Western Samoa, Kiribati and the Solomon Islands, apply customary law for offences of a criminal nature, although usually with limited jurisdiction.⁶⁹

The relevance of the international scene

1.33 Within Indigenous communities throughout the world, the place of custom-based resolutions, restorative justice and community healing in the criminal justice system, have been explored in recent years, opening channels for the formal legal system to deal with offenders in ways that show greater understanding of the nature of those communities. Several countries, notably New Zealand and Canada, have instigated programs to facilitate greater participation of Aboriginal people in the criminal justice system. These examples provide valuable guidance for making the criminal justice system more responsive to the needs of Australian Indigenous people.

1.34 As successful as some overseas initiatives in sentencing appear to have been, the Commission is wary of recommending that particular programs or processes developed specifically within Indigenous communities in other locations be transplanted into Indigenous communities in New South Wales. It is a dangerous and simplistic assumption to equate cultural norms, so that a theory or model developed in one culture is co-opted for application in an alien environment. The functioning of programs and processes in other Indigenous communities, for example, sentencing circles or healing lodges in Canada, are very culturally specific.⁷⁰ However, their philosophy and principles are relevant and can inspire and inform decisions about adopting similar approaches locally. This is to be encouraged. An example can be found in plans for Department of Corrective Services personnel to investigate the operation of healing lodges in Canada so as to develop alternatives to imprisonment for Aboriginal women,⁷¹ and AJAC’s consideration of sentencing circles.⁷²

STATEMENT OF COMMITMENT TO ABORIGINAL PEOPLE

1.35 In November 1997, The New South Wales Government Statement of Commitment to Aboriginal People was published, setting out the Government’s determination to lead Australia towards justice and equality for Aboriginal people. The Statement addresses numerous areas of Government policy as it affects the Aboriginal people of this State, expressing the Government’s priorities for redressing the complex and inter-related disadvantages experienced by Aboriginal people. The Government proposes in the Statement to move forward in true partnership with Aboriginal people, and with an integrated approach by Government agencies.

1.36 In relation to the “Government’s commitment to a more responsive justice system”, promised strategies include encouraging Aboriginal involvement in the formulation of policies and programs within law and justice; collaboration with Aboriginal communities in the implementation of non-custodial and post-release programs; and making preventative measures central to law and justice policy. The special needs of Aboriginal women with regard to domestic violence, legal representation and the impact of incarceration of male family members, are recognised. The Government proposes a range of initiatives such as: improved reporting on the implementation of RCIADIC recommendations,⁷³ employing Aboriginal Court Liaison Officers; increasing access for convicted Aboriginal offenders to non-custodial options such as home and periodic detention; making custodial practices more responsive to the needs of Aboriginal detainees and assisting them to develop skills to help them break the reoffending cycle; and innovative strategies for young offenders to divert them from contact with the criminal justice system.

1.37 The Statement of Commitment indicates that the Government has accepted in principle the need to work in partnership with Aboriginal people on law and justice issues. Many significant initiatives have already been implemented or are under active consideration. It is in this context that the Commission makes the recommendations in this Report.

Delivery of programs for Aboriginal people

1.38 Development and delivery of programs in relation to sentencing should be conducted in accordance with the National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders, endorsed by the Council of Australian Governments in 1992. This document indicates the roles and responsibilities of Governments in planning and delivering programs and services which redress the inequality and disadvantage of Australian Indigenous peoples.

NATURE AND CONDUCT OF THE COMMISSION’S INQUIRY

1.39 In preparing this Report, the Commission sought comments and submissions from organisations and individuals in New South Wales with an interest in Aboriginal offenders. In particular, comments were sought from AJAC, Aboriginal legal services, relevant government departments, courts, the legal profession, and academics in other jurisdictions. Written submissions received are listed in Appendix A.

1.40 The two major issues on which the Commission sought guidance were the recognition of Aboriginal customary laws in the context of sentencing, and the need for legislative statement of the sentencing principles to be applied to Aboriginal offenders. The other main focus of the Commission’s inquiries was the provision of culturally appropriate sentencing options for Aboriginal offenders. The use of community justice mechanisms and the roles which could be played by the community in sentencing were extensively explored. Subsidiary issues raised in consultation included problems with particular sentencing options currently in use in New South Wales, the specific needs of female Aboriginal offenders, issues relating to legal representation, difficulties for Aboriginal offenders with language in the court room, and cross-cultural awareness for the judiciary and other personnel in the criminal justice system. An important aspect of the Commission’s inquiries was to identify those programs and processes followed in other jurisdictions which could be considered appropriate to recommend for use in New South Wales.

1.41 No consultation paper was published by the Commission. The issues were clear in the light of the numerous other reports previously noted, and the extensive public debate and writing in the area. Consequently, consultation occurred in the main by direct contact with organisations and individuals identified as being able to contribute to our deliberations. Co-operation came from within the Attorney General’s Department, specifically the Aboriginal Justice Advisory Council, the Norimbah Unit, and the Aboriginal Staff Network. The Indigenous Services Unit within the Department of Corrective Services provided insight into the position of Aboriginal offenders serving sentences of imprisonment, and the practicalities involved in providing culturally appropriate sentencing options. Also from that Department, the Women’s Unit and the Probation and Parole Service gave valuable assistance.

1.42 The Commission conducted surveys of both District Court judges and Local Court magistrates in relation to various issues being considered for this Report. We acknowledge the co-operation given by officers of the Judicial Commission, the Chief Judge of the District Court, the Chief Magistrate and Deputy Chief Magistrates of the Local Court, and all those judges and magistrates who completed a questionnaire. Public Defenders also completed a similar questionnaire.

1.43 Every effort was made to direct our inquiries to Aboriginal people, and we met with several representative organisations, as well as Aboriginal people individually. One of the Commissioners on this reference’s Division is His Honour Judge Bob Bellear, the first Aboriginal judge in this State. Those contributions were vital to our understanding of the issues with which this Report deals. The Commission expresses its thanks to them.

1.44 The consultation process open to the Commission is inherently limited. While it has been important to try to understand what Aboriginal and Torres Strait Islander people in New South Wales think about the issues under consideration, Indigenous communities do not speak with one voice, but, like all communities, embody differences of opinion. The Commission was made aware of these diverse views, and has made an independent assessment in developing the recommendations in this Report.

THE COMMISSION’S APPROACH

The role of the Aboriginal community

1.45 The Commission is acutely aware of its position in making recommendations to the Attorney General about sentencing Aboriginal offenders and the role the Aboriginal community might play in sentencing and the criminal justice system generally. It is our contention that the best solutions to the problems confronting the Government and the community will come from the Aboriginal community itself, and that there must be a partnership between the two in order to implement lasting and effective strategies to deal with the issues. Our recommendations reflect this position.

Recommendations as to sentencing

1.46 The number of Indigenous people in prison and before the criminal courts indicates a growing social, cultural and economic problem, not just for the Aboriginal and Torres Strait Islander communities, but for New South Wales and Australia as a whole. It points to a climate which is failing Indigenous people in the following ways. First, there is a lack of adequate or appropriate social and economic support structures to facilitate a life without crime. Secondly, once an offence has been committed, the criminal justice system often fails to consider cultural factors which may seem irrelevant to the non-Indigenous community, but may be crucial to explaining the demeanour of an Indigenous person in court or the context in which the offence was committed. Thirdly, in some cases, the system does not provide the infrastructure necessary to make non-custodial sentences a viable option. Finally, the criminal justice system is not achieving sufficient levels of rehabilitation of Indigenous offenders, resulting in high levels of recidivism.

1.47 This is not to say that Indigenous offenders are not responsible for their actions and the crimes they commit. Rather, it puts into context the Commission’s recommendations, which are aimed at slowing the increase in the numbers of Indigenous offenders, not by imposing more stringent penalties, but by attempting to address some of the underlying causes of Indigenous over-representation in prison.⁷⁴ The Commission is strongly of the view that diversionary strategies which look at the causes of offending behaviour, developed in consultation with Indigenous communities, would be far more effective than harsh enforcement measures in reducing the numbers of Indigenous offenders before the courts.

Structure of the Report

1.48 Sentencing principles, and their application to Aboriginal and Torres Strait Islander people, are discussed in Chapter 2. The recognition of Aboriginal customary laws within sentencing is considered in Chapter 3.

1.49 For sentencing to be truly effective in achieving goals not only of punishment, but also rehabilitation and community healing, sentencing initiatives must be relevant and responsive to particular community needs. Chapter 4 examines local and overseas programs aimed at achieving Aboriginal input into the sentencing process.

1.50 The operation of sentencing options is considered in Chapter 5, while Chapter 6 focuses on particular issues relevant to the sentencing of Aboriginal women offenders. Matters relating to the need for cross-cultural understanding, including aspects of communication, are considered in Chapter 7.

Beyond sentencing

1.51 There are inherent limitations in focusing purely on sentencing, since explanations for the levels of offending by, and over-representation of, Aboriginal people, in the criminal justice system involve much more than sentencing law and practice. Sentencing is the last stage of a chain of actions and decisions in the criminal justice system. In consultations, many people raised legitimate concerns about various aspects of the criminal justice system, for example, practices of police and prosecuting counsel, and bail decisions and conditions and how they apply in practice. The Commission considers, however, that these matters lie outside the scope of this Report. Notwithstanding these limitations, the recommendations made by the Commission in relation to sentencing will inevitably reach out to the criminal justice system generally.

1.52 Given that the root causes of Indigenous offending lie in disadvantage and despair occasioned by poverty, unemployment, addictive behaviour, poor levels of education and health, and social and economic disempowerment, addressing them will not be easy. Commitment to effecting positive changes in these areas is essential, however, to create a climate whereby Aboriginal people have true equality before the law.

Reconciliation

1.53 During the course of this inquiry, Australia has been involved in taking steps towards national reconciliation with Aboriginal and Torres Straight Islander peoples.⁷⁵ The recommendations of this Report are intended to be consistent with the spirit of reconciliation.

1. The background to the reference is outlined in New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996) (“NSWLRC DP 33”) at para 1.1-1.9.

2. See NSWLRC DP 33 at para 1.11-1.20.

3. New South Wales Law Reform Commission, Sentencing (Report 79, 1996) (“NSWLRC Report 79”).

4. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) (“ALRC 31”). That request was made by letter dated 9 January 1996.

5. See, eg, Commonwealth v Tasmania (1983) 158 CLR 1 at 274 (Deane J). See also Aboriginal Land Rights Act 1983 (NSW) s 4(1); Crimes Act 1900 (NSW) s 355(1); and Children (Protection and Parental Responsibility) Act 1997 (NSW) s 3.

6. Australia, Aboriginal and Torres Strait Islander Social Justice Commissioner, Aboriginal and Torres Strait Islander Social Justice Commission Annual Report 1999 (Dr W Jonas, Sydney, 2000) (the “Social Justice Commissioner Report (1999)”) «www.hreoc.gov.au/ sj_report99» at 21.

7. Australian Bureau of Statistics, Prisoners in Australia, 1998 (ABS, Canberra, June 1999) (“Prisoners in Australia 1998”) at 14 and 65. See also the Social Justice Commissioner Report (1999) at 17-19.

8. Prisoners in Australia 1998 at 12, 14, 62-63 and 65.

9. ABS, Corrective Services Australia, Publication No 4512.0, Summary of Findings «www.abs.gov.au/ausstats» (“ABS Publication No 4512.0”).

10. New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 1999 (Statistical Report Series, 2000) at xiv.

11. A 1997 study of public order legislation by the Bureau of Crime Statistics and Research (“BOCSAR”) revealed that the rate of court appearances for what is known as the “quinella” (offensive behaviour or language, resist arrest and/or assault police) is highest in areas with high Aboriginal populations. Overall, this research indicated that Aboriginal people in NSW are far more likely to face charges of offensive behaviour and offensive language than non-Aboriginal people, and are less likely to have those charges dismissed: R Jochelson, “Aborigines and Public Order Legislation in New South Wales” Crime and Justice Bulletin No 34 (NSW, BOCSAR, February 1997); see also NSW, Anti-Discrimination Board, A Study of Street Offences by Aborigines (Sydney, June 1982).

12. Aboriginal Justice Advisory Council, Policing Public Order: Offensive Language and Conduct, the Impact on Aboriginal People (No 1, September 1999) «www.lawlink.nsw.gov.au/ajac/publications» (“AJAC Public Order Report”).

13. See AJAC Public Order Report «www.lawlink.nsw.gov.au/ ajac/publications».

14. 1998 figures showed that 78% of male and 70% of female Indigenous prisoners had previously been sentenced to prison, compared with 63% of male and 55% of female prisoners generally: Prisoners in Australia 1998 at 17 and 66. See also B Thompson, Recidivism in NSW: A General Study (NSW, Department of Corrective Services, Research Publication No 31, May 1995); R Broadhurst and R A Maller, “The recidivism of prisoners released for the first time: reconsidering the effectiveness question” (1990) Australian and New Zealand Journal of Criminology 88.

15. Australia, National Report of the Royal Commission into Aboriginal Deaths in Custody (Five Volumes) (E Johnston, Royal Commissioner, AGPS, Canberra, 1991-92) (the “RCIADIC Report”) vol 3 at 67-71.

16. See Social Justice Commissioner Report (1999) at Chapter 5.

17. See V Dalton, “Australian Deaths in Custody and Custody-related Police Operations 1997” Trends and Issues in Crime and Criminal Justice (No 80, AIC, Canberra, March 1998); V Dalton, “Prison Deaths 1980-97: National Overview and State Trends” Trends and Issues in Crime and Criminal Justice (No 81, AIC, Canberra, March 1998) (“Prison Deaths 1980-97”).

18. Social Justice Commissioner Report (1999) at 86.

19. See, eg, C Cunneen and D McDonald, Keeping Aboriginal and Torres Strait Islander People Out of Custody: An Evaluation of the Implementation of the Recommendations of the Royal Commission in Aboriginal Deaths in Custody (Office of Public Affairs, ATSIC, Canberra, 1997) (“Cunneen and McDonald 1997”) at 42-54; R Broadhurst, Aborigines and Crime in Australia (University of Chicago, 1997); R Lincoln and P Wilson, “Aboriginal Offending: Patterns and Causes” in D Chappell and P Wilson (eds), The Australian Criminal Justice System: The Mid 1990s (Sydney, 1994) at 61; R Smandych, R Lincoln, and P Wilson, “Towards a Cross-Cultural Theory of Aboriginal Criminality” in K Hazlehurst (ed), Perceptions of Justice: Issues in Indigenous and Community Empowerment (Avebury, Aldershot, 1995) at 245. Similar debates regarding explanations of over-representation occur in relation to Indigenous minorities overseas: see, eg, New Zealand, Ministry of Justice, Sentencing Policy and Guidance: Discussion Paper (Wellington, 1997) at Chapter 10; and C LaPrairie, “The Role of Sentencing in the Over-Representation of Aboriginal People in Correctional Institutions” (1990) 32 Canadian Journal of Criminology 429.

20. A number of studies indicate disparities in outcomes: see P Gallagher and P Poletti, Sentencing Disparity and the Ethnicity of Juvenile Offenders (Judicial Commission of New South Wales, Sydney, 1998); NSW, BOCSAR, New South Wales Criminal Courts Statistics 1997 (June 1998) at xii-xiv, Tables 1.6, 1.6a.

21. Broadhurst (1997) at 409, 413ff, and 463.

22. Ministerial Summit on Indigenous Deaths in Custody, Outcomes Statement (4 July 1997): see below para 1.25-1.26.

23. Australia, HREOC, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997) (“Bringing Them Home”) at 548-549.

24. RDIADIC Report, vol 2 at para 18.1.1-18.1.6; Bringing Them Home at 549-550.

25. RDIADIC Report, vol 2 at para 16.4.2-16.4.25; Bringing Them Home at 552-555.

26. RDIADIC Report, vol 2 at para 17.2.8-17.2.21; 17.3.56-17.3.57; Bringing Them Home at 551-552.

27. RDIADIC Report, at para 15.2.12; 15.2.20; Bringing Them Home at 546-548.

28. NSW, AJAC, Review of the NSW Government Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (September, 2000) (“AJAC Implementation Review”) at 5, 6 and 8.

29. AJAC Implementation Review at 8.

30. As distinct from the position of immigrant minorities: see para 3.33.

31. The experiences of Aboriginal people have been depicted in several studies, for example, E Eggleston, Fear, Favour or Affection: Aborigines and the Criminal Law in Victoria, South Australia and Western Australia, (ANU Press, Canberra, 1976); K Hazlehurst, Ivory Scales: Black Australians and the Law, (UNSW Press, Kensington, 1987); P Hanks and B Keon-Cohen, Aborigines and the Law: Essays in Memory of Elizabeth Eggleston (Allen and Unwin, Sydney, 1984); G Bird, The”Civilising Mission”: Race and the Construction of Crime (Monash University, Melbourne, 1987); J Basten et al, The Criminal Injustice System (Australian Legal Workers Group, 1982).

32. M Lucashenko, Policy and Politics in the Indigenous Sphere: An Introduction for Bureaucrats (Aboriginal Politics and Public Sector Management Research Paper No 1, Centre for Australian Public Sector Management, Griffith University, June 1996) «www.cad.gu.edu.au/capsm/Lukashen.htm».

33. RCIADIC Report, Overview and Recommendations (AGPS, Canberra, 1991) at para 1.5.2.

34. RCIADIC Report, vol 2, at Chapter 10.

35. See Western Australia, Report of the Chief Justice’s Taskforce on Gender Bias (1994). The sentencing of Aboriginal women is examined in Chapter 6 of this Report.

36. See S Yeo, “The Recognition of Aboriginality by Australian Criminal Law” in G Bird, G Martin, and J Neilsen (eds), Majah: Indigenous Peoples and the Law (Federation Press, Sydney, 1996) at 228.

37. See M Dodson, Indigenous Social Justice: A Submission to the Parliament of the Commonwealth of Australia on the Social Justice Package (April, 1995) vol 2 at 130-164; and M Dodson “Linking International Standards with Contemporary Concerns of Aboriginal and Torres Strait Islander Peoples” in S Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (Federation Press, Sydney, 1998) at 18.

38. The Australian Government has withdrawn support for the concept of self-determination in domestic Indigenous affairs policy and support for the Draft Declaration: see M Dodson and S Pritchard, “Recent Developments in Indigenous Policy: The Abandonment of Self-Determination?” (1998) (4)15 Indigenous Law Bulletin 4.

39. See B R Opeskin and D R Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, Melbourne, 1997); S Pritchard “The significance of international law” at 2, in Pritchard (1998).

40. RDIADIC Report, Overview at para 1.3.1.

41. RDIADIC Report, vol 2 at para 20.1.1-20.1.8 and more generally para 20.2-20.6.4; vol 4 at para 27.1-27.92.

42. RDIADIC Report, vol 2 at para 22.1.14 (Recommendation 92).

43. RDIADIC Report, vol 2 at para 22.1.14 (Recommendation 93).

44. RDIADIC Report, vol 2 at para 22.4.51 (Recommendation 104), and 22.5.13 (Recommendations 110 and 111).

45. AJAC Implemetation Review.

46. For example, Cunneen and McDonald (1997); and Office of the Social Justice Commissioner, Indigenous Deaths in Custody 1989-1996 (ATSIC, Canberra, 1996).

47. AJAC Implementation Review at 8.

48. AJAC Implementation Review at 8. The Commission discusses the involvement of Aboriginal communities in the criminal justice system in Chapter 4.

49. Signed by most Indigenous and Government representatives, including the then NSW Attorney General, the Hon J W Shaw QC MLC. ATSIC, Mick Dodson, the former Social Justice Commissioner, and the Northern Territory Government, did not sign the Statement.

50. ALRC 31. That Report’s relevance for sentencing is discussed in detail in Chapter 3.

51. Australia, Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report (M Dodson, AGPS, Canberra, 1993); Australia, Aboriginal and Torres Strait Islander Social Justice Commissioner, Second Report (M Dodson, AGPS, Canberra, 1994); Australia, Aboriginal and Torres Strait Islander Social Justice Commissioner, Third Report (M Dodson, AGPS, Canberra, 1995); Australia, Aboriginal and Torres Strait Islander Social Justice Commissioner, Fourth Report (M Dodson, AGPS, Canberra, 1996) – see especially Chapter 2: “Diversion from Custody”; Australia, Aboriginal and Torres Strait Islander Social Justice Commissioner, Fifth Report (M Dodson, AGPS, Canberra, 1997).

52. Social Justice Commissioner Report (1999).

53. See, eg, Australia, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Mainly Urban (November 1992); Australia, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Aboriginal Legal Aid (AGPS, Canberra, 1980); Australia, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Our Future, Our Selves (1990).

54. Australian National Committee on Violence, Violence: Directions for Australia (AIC, Canberra, 1990) at 165ff.

55. Australia, HREOC, Racist Violence: Report of the National Inquiry into Racist Violence (AGPS, Canberra, 1991) (“HREOC Racist Violence Report”).

56. See, eg, NSW, Community Services Commission, The Drift of Children in Care into the Juvenile Justice System: Turning Victims into Criminals (Discussion Paper, December 1996); Juvenile Justice Advisory Council of NSW, Future Directions in Juvenile Justice in New South Wales (Green Paper, February 1993); NSW, Department of Juvenile Justice, Breaking the Crime Cycle: New Directions for Juvenile Justice in NSW (White Paper, 1994); NSW Parliament, Legislative Council Standing Committee on Social Issues, Juvenile Justice in New South Wales (Report No 4, May 1992); NSW, Youth Justice Coalition, Kids in Justice: A Blueprint for the 90s (Sydney, 1990).

57. See NSW Parliament, Report of the NSW Women in Prison Task Force (March 1985).

58. See NSW Parliament, Legislative Council Standing Committee on Social Issues, A Report into Children of Imprisoned Parents (Report No 12, July 1997).

59. See, eg, International Commission of Jurists, Australian Section, Report of the Aborigines and the Law Mission (1992); Amnesty International, Australia: A Criminal Justice System Weighted Against Aboriginal People (January 1993); Amnesty International, Australia, Deaths in Custody: How Many More? (June 1997); C Cunneen, A Study of Aboriginal Juveniles and Police Violence (HREOC, November 1990); C Cunneen and T Robb, Criminal Justice in North-West New South Wales (Bureau of Crime Statistics and Research, Sydney, 1987); F Gale, R Bailey-Harris, and J Wundersitz, Aboriginal Youth and the Criminal Justice System: The Injustice of Justice (Cambridge University Press, 1990); G Luke and C Cunneen, Aboriginal Over-Representation and Discretionary Decisions in the New South Wales Juvenile Justice System (Juvenile Justice Advisory Council of NSW, January 1995).

60. See Bringing Them Home; and Aboriginal Legal Service of Western Australia (Inc), Telling Our Story: A Report by the Aboriginal Legal Service of Western Australia (Inc) on the removal of Aboriginal Children from their families in Western Australia (July 1995).

61. See Cunneen and McDonald (1997), Tables 16 and 17 at 35-36.

62. See Canadian Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Canada Communication Group, Ottowa, 1996); Minister of Supply and Services, Aboriginal Peoples and the Justice System: Report of the Round Table on Aboriginal Justice Issues (Ottawa, 1993).

63. R A Cawsey, Justice on Trial, Report of the Task Force on the Criminal Justice System and its Impact on Indian and Métis People (Alberta, Edmonton, 1991).

64. A C Hamilton and C M Sinclair, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba: volume 1, The Justice System and Aboriginal People (Queen’s Printer, Winnipeg, 1991); L McNamara, “Autonomy-Based Solutions and Criminal Justice Reform: A Comparison of the Recommendations of the Australian RCIADIC and the Aboriginal Justice Inquiry of Manitoba” (1992) 2(54) Aboriginal Law Bulletin 4.

65. P Linn, Report of the Saskatchewan Indian Justice Review Committee (1992); P Linn, Report of the Saskatchewan Métis Justice Review Committee (1992).

66. Nova Scotia, Royal Commission of Inquiry into the Donald Marshall Jr Prosecution (1988).

67. Law Reform Commission of Canada, Report on Aboriginal Peoples and Criminal Justice: Equality, Respect and Search for Justice (Report 34, 1991).

68. See M Jackson, The Maori and the Criminal Justice System: A New Perspective: He Whaipaanga Hou (Wellington, 1988); New Zealand, Ministry of Justice, Sentencing Policy and Guidance (Discussion Paper, Wellington, 1997) at Chapter 10; New Zealand, Ministry of Justice, Restorative Justice: A Discussion Paper (Wellington, 1996). For a discussion of conferencing in New Zealand see para 4.29.

69. M Findlay, “Decolonising Restoration and Justice” (1998) 10 Current Issues in Criminal Justice 85. See also D Weisbrot, A Paliwala, and A Sawyerr (eds), Law and Social Change in Papua New Guinea (Butterworths, Sydney, 1982).

70. See J Roberts and C LaPrairie, “Sentencing Circles: Some Questions Unanswered” (1996) 39 Canadian Law Quarterly 69.

71. See Chapter 6.

72. See para 4.32-4.34.

73. Although AJAC was critical of the Government’s reporting on RCIADIC implementation in its latest implementation review: see AJAC Implementation Review at 8, and para 1.12 of this Report.

74. The Commission is limited in this respect by its Terms of Reference, which ask it to look only at the sentencing aspect of the criminal justice system.