Indigenous incarceration: ALRC recommendations endorsed

The New South Wales Select Committee on the high level of First Nations People in custody and oversight and review of deaths in custody (the ‘Committee’) has called on the NSW Government to take urgent action to address the disproportionate rates of incarceration of First Nations people in New South Wales. As the Chief Justice of NSW, the Honourable TF Bathurst AC, has recently made clear, First Nations peoples are ‘one of the most incarcerated people in the world’.

In 2020, the NSW Government to set up the Committee to inquire into, and report on, the ‘unacceptably high level of First Nations people in custody in New South Wales, the suitability of the oversight bodies tasked with inquiries into deaths in custody in New South Wales’, and other related matters. In its final report, published on 15 April 2021, the Committee recommended that ‘the NSW Government commit to the immediate and comprehensive implementation of all outstanding recommendations from the 1991 Royal Commission into Aboriginal Deaths in Custody report and the 2017 Australian Law Reform Commission’s Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples report’. The ALRC’s report contains 35 recommendations which aim to address the disproportionate rates of incarceration of First Nations peoples in Australia, improve equality before the law for culturally diverse litigants and increase justice reinvestment through the redirection of resources from incarcerations to prevention, rehabilitation and support.

According to the Committee, ‘a recurring theme in the submissions and oral evidence given by witnesses was the need for governments to fully implement … recommendations from the ALRC Pathways to Justice report’. The Committee, echoing a submission from the NSW Bar Association, drew attention to 10 priorities in the ALRC report that need to be urgently addressed by the NSW Government. These priorities are:

• the establishment of an independent justice reinvestment body, overseen by a Board with First Nations leadership, and the initiation of justice reinvestment trials to promote engagement in the criminal justice system;
• the establishment of properly resourced specialist First Nations sentencing courts, to be designed and implemented in consultation with First Nations organisations;
• repeal of mandatory or presumptive sentencing regimes which have a disproportionate effect on Aboriginal offenders;
• the expansion of culturally appropriate community-based sentencing options;
• the diversion of resources from the criminal justice system to community based initiatives that aim to address the causes of Indigenous incarceration;
• the revision of bail laws to require bail authorities to consider cultural issues that arise due to a person’s Aboriginality;
• raising the minimum age of criminal responsibility and the minimum age of children in detention to 14;
• the abolition or restriction of offences relating to offensive language to genuinely threatening language;
• fine defaults not resulting in imprisonment; and
• the introduction of specific sentencing legislation to allow courts to take account of unique systemic and background factors affecting Indigenous peoples.

The Committee, in its eighth recommendation, also supported the ALRC’s recommendation for bail legislation to require bail decision makers to take into account any issues that arise due to the person’s Aboriginality.  The Committee specifically recommended that the NSW Government amend the Bail Act 2013 (NSW) to include a standalone provision that parallels section 3A of the Bail Act 1977 (Vic).

In general, the Committee found that the historical, social and economic drivers contributing to disproportionate incarceration rates for First Nations people still exist, and this is, in part, because there is ‘no clear, transparent monitoring or reporting on the implementation of recommendations’. According to the Committee, it is ‘extremely disappointing’ that many of the recommendations made in influential reports, such as the ALRC report, have not been implemented, and 30 years on from the Royal Commission into Indigenous deaths in custody, ‘we are no closer to addressing the over-representation of First Nations people in the criminal justice system’. Fortunately, as Mr McAvoy SC submitted to the Committee, the royal commission report and the ALRC report ‘in themselves provide a guide for the States and the Commonwealth’ as to how they might address the systemic issues relating to over-incarceration.

The NSW Government is yet to respond to the final report. View the Committee’s final report.

View the ALRC Pathways to Justice Report, and the summary report.