Views
3 months ago

LSB April 2018_Web

ABORIGINAL JUSTICE Major

ABORIGINAL JUSTICE Major report makes key access to justice recommendations to reduce Indigenous incarceration MATTHEW CORRIGAN, PRINCIPAL LEGAL OFFICER, AUSTRALIAN LAW REFORM COMMISSION The Australian Law Reform Commission (ALRC) report on the incarceration rates of Aboriginal and Torres Strait Islander peoples was tabled in Parliament on 28 March. The ALRC made 35 recommendations. A key area for reform is improving access to justice for Aboriginal and Torres Strait Islander people. Aboriginal and Torres Strait Islander adults continue to be incarcerated at an alarming rate across Australia. In South Australia, Aboriginal and Torres Strait Islander adults make up 19% of the prison population despite only making up around 2% of the population. Over-representation is both a persistent and growing problem— Aboriginal and Torres Strait Islander incarceration rates increased 41% between 2006 and 2016, and the gap between Aboriginal and Torres Strait Islander and non-Indigenous imprisonment rates over that decade widened. This is not a new problem. In 1991, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that the Aboriginal population was grossly overrepresented in custody. The RCIADIC looked at indicators of disadvantage that contributed to this disproportionate representation, including the economic position of Aboriginal people, the health situation, their housing requirements, their access or non-access to an economic base including land and employment, their situation in relation to education; the part played by alcohol and other drugs—and its effects. 1 Over the 26 years since the RCIADIC, multiple resources have been dedicated to remedying the factors identified by the RCIADIC and to reducing the disproportionate incarceration of 34 THE BULLETIN April 2018 Aboriginal and Torres Strait Islander peoples. SUBSTANTIVE EQUALITY The ALRC’s Inquiry involved fundamental questions about equality before the law and equality in treatment by the law. In this Inquiry, the ALRC focused on achieving substantive, not just formal, equality. Formal equality suggests that all people should be treated the same regardless of their differences. Substantive equality is “premised on the basis that rights, entitlements, opportunities and access are not equally distributed throughout society and that a one size fits all approach will not achieve equality”. 2 The ALRC did not propose a “parallel system” of justice for Aboriginal and Torres Strait Islander people. However, the ALRC recognises, as Brennan J observed in Gerhardy v Brown, that formal equality may be “an engine of oppression destructive of human dignity if the law entrenches inequalities “in the political, economic, social, cultural or any other field of public life”. 3 Achieving substantive and not formal equality before the law includes, for example, the consideration upon sentencing of the unique and systemic factors affecting Aboriginal and Torres Strait Islander offenders. It also includes not only consistency in the provision of sentence options and diversion and support programs across the country, but also ensuring that these are culturally appropriate. Achieving substantive equality also requires ensuring that Aboriginal and Torres Strait Islander people enjoy equal access to justice in policies, programs and services. ACCESS TO JUSTICE ISSUES ALRC recommendations to improve access to justice are focused on specific issues faced by Aboriginal and Torres Strait Islander people appearing as defendants before the criminal justice system. Communication barriers can be a significant issue. For many people from isolated Aboriginal and Torres Strait Islander communities, English may be a second or third language. Some Aboriginal and Torres Strait Islander people may find it difficult—if not impossible—to understand legal proceedings without access to an interpreter. Many jurisdictions with high proportions of remote Aboriginal and Torres Strait Islander populations such as Queensland, South Australia, and Western Australia currently operate without state-funded dedicated interpreter services for Aboriginal and Torres Strait Islander people. The ALRC recommended that state and territory governments work with relevant Aboriginal and Torres Strait Islander organisations to establish interpreter services within the criminal justice system where needed. Alienation and disconnection from mainstream court processes can limit access to justice for Aboriginal and Torres Strait Islander people. Specialist Aboriginal and Torres Strait Islander sentencing courts aim to be inclusive and culturally appropriate and to increase active participation through the inclusion of key community members, such as Elders, and the use of plain English to ensure that processes and requirements imposed by the court are well understood by the person appearing. Such courts “emphasise

CPD Events For further details and to register: www.lawsocietysa.asn.au cpd@lawsocietysa.asn.au All sessions that are being held at LSSA, will be held at Level 10 Terrace Towers, 178 North Terrace Adelaide the importance of giving Aboriginal people a meaningful say in the decisions that affect their everyday lives”. The ALRC recommends that state and territory governments establish specialist Aboriginal and Torres Strait Islander sentencing courts in areas and regions where needed. The ALRC Report also highlights the urgent need for adequate resourcing of legal assistance providers. Access to legal representation and advice is one of the cornerstones of addressing the disproportionate rates of Aboriginal and Torres Strait Islander incarceration. In the absence of legal representation and advice, a defendant may be incarcerated for a range of reasons, including sentencing following an inappropriate guilty plea, a lack of awareness of available defences or pleas in mitigation. Submissions to the inquiry argued strongly that access to justice fundamentally requires sufficient, sustainable and ongoing funding for legal assistance providers. FITNESS TO STAND TRIAL REGIMES High rates of cognitive impairment and mental illness have been observed in the Australian general prison population. For example, in NSW, people with a mental illness or cognitive impairment were found to be 3 to 9 times more likely to be in prison than the general population. 4 This over-representation is particularly pronounced for Aboriginal and Torres Strait Islander prisoners with research finding that Aboriginal and Torres Strait Islander people with mental illness and cognitive impairment are “significantly more likely to have experienced earlier and more frequent contact with the criminal justice system”. 5 Where cognitive impairment or mental illness is acute, the issue of a person’s fitness to stand trial may be raised. If found unfit to stand trial, in jurisdictions without fixed terms, a person may face a particularly stark access to justice issue— the prospect of indefinite detention or detention that far exceeds the maximum sentence for the offence. These issues are best addressed by reforms which provide both for a fixed term of detention and regular periodic reviews while the person is in custody. CONCLUSION The ALRC considers that the implementation of the recommendations in its Report will: • reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander people; • improve access to justice; and • improve community safety. The ALRC Report, Pathways to Justice– Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander People, and full list of recommendations is available at www.alrc.gov.au/publications. Endnotes 1 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 1, [1.3.6]. 2 Australian Human Rights Commission, The Declaration Dialogue Series: Paper No 5—Equality and Non-Discrimination (2013) 8. 3 Gerhardy v Brown (1985) 159 CLR 70, 129. 4 Ruth McCausland et al, ‘People with Mental Health Disorders and Cognitive Impairment in the Criminal Justice System: Cost-Benefit Analysis of Early Support and Diversion’ (UNSW, PwC, August 2013) 3. 5 Eileen Baldry et al, A Predictable and Preventable Path: Aboriginal People with Mental and Cognitive Disabilities in the Criminal Justice System (University of New South Wales, 2015) 10. Drafting Affidavits 2 May 2018 1.30pm – 5.00pm 3 Units * Drafting Effective Pleadings 3 May 2018 9.00am – 12.30pm 3 Units * Trusts Demystified 4 May 2018 9.00am – 12.30pm 3 Units * Advocacy Workshop 16 May 2018 2.15pm – 5.15pm 3 Units * Advocacy Workshop 17 May 2018 2.15pm – 5.15pm 3 Units * Workers Compensation Law – Latest Developments with the RTW and SAET 24 May 2018 8.30am – 1.15pm 4.5 Units * *Total CPD Units are accurate at time of printing and should be taken as a guide only. HAVE AN IDEA FOR A FUTURE SEMINAR? We invite practitioners to tell us what seminar they would like to see conducted next. Email us at cpd@lawsocietysa.asn.au with your ideas. April 2018 THE BULLETIN 35