The Statistical Background

394. The Disproportionate Impact of the Criminal Justice System. That Aborigines are subject to the general criminal law has long been established.^[2] Great difficulties have sometimes been experienced in the trial of traditional Aborigines, whose comprehension not only of the forms and procedures of their trial but also of the substance of the charge is often slight or even non-existent.^[3] But, despite difficulties in particular cases, the criminal law has been applied to Aborigines in all its aspects. The results of its application are now so well known as to be notorious. Aborigines are grossly over-represented in Australian criminal statistics, both in terms of conviction rates and rates of imprisonment. In her ‘pioneering study’, Dr Eggleston pointed out that in Western Australia in 1965, Aborigines, who constituted 2.5% of the State’s population, were convicted of 11% of offences and made up 24% of the prison population.^[4] In South Australia in the same year, Aborigines (0.7% of the population) accounted for 14% of the admissions to prison.^[5] This overrepresentation, she found, was not only the result of different patterns of criminality, but of differences in arrest, prosecution and sentencing practices.^[6] Although the distribution of offences has changed since the 1960s,^[7] the overall situation remains similar. National Prison Census figures for 1984 indicate that Aborigines, while less than 2% of the Australian population, comprise approximately 10.5% of the prison population. The rate of imprisonment of Aborigines is over 16 times that of non-Aborigines. On a State by State basis the rates are as follows:

NUMBER & % OF PRISONERS BY JURISDICTION AND ABORIGINALITY^[8]

Indeed, it is possible that these figures understate the real situation, at least with respect to some classes of offence. In a study of violent crime on Queensland Aboriginal reserves, Dr Paul Wilson found an annual homicide rate (for the 17 communities studied) of 39.6 per 100 000, compared with a rate for Queensland of 3.28 and for all Australia of 4.0.^[9] The rate of serious assault on these reserves was also far greater than the Queensland rate.

Assault is far more likely than murder to be ignored by white police, to go unreported, or to be dealt with informally by Aboriginal police on reserves. But even with assault we find the same bleak picture emerging from the statistics. The rate for serious assault charges on reserves is 226.05 per 100 000 compared with a Queensland figure of 43.85. So, although the reported Aboriginal rate is five times greater than for that State as a whole, the enormous ‘hidden’ assault rate — crimes not reported — is probably 10 to 15 times the State or national figure.^[10]

395. The Position with Minor Offences. The exorbitant crime and imprisonment rates recorded in these studies are not confined to serious or violent crimes. At least in recent times, a high proportion of Aboriginal offences has been of a minor, repetitive, sometimes even trivial character.^[11] The New South Wales Anti-Discrimination Board in a study of street offences by Aborigines found that:

in 10 NSW towns with high Aboriginal populations, Aborigines charged with minor offences in public places greatly outnumber non-Aborigines. The behaviour resulting in the charges was in the main or’ a trivial nature, the majority of offences involving the use of unseemly words. Penalties, too, have a more severe impact on Aboriginal people. An appreciable number of those convicted and fined in the 10 towns in this study went to jail rather than pay the fine, even though jail is not a punishment option available under the Offences in Public Places Act.^[12]

In South Australia between 1 January 1983–30 June 1983, 34% of all persons convicted of ‘drunkenness’, ‘minor street offences’ an ‘offences against order’ were Aboriginal.^[13] In country areas a similar pattern emerges to that in NSW:

A study of court records … show that courts servicing communities with a substantial Aboriginal population … have markedly higher rates of imprisonment for vagrancy offences and fines and imprisonment for public drunkenness offenders than other courts. An Aboriginal defendant charged with offensive behaviour before the country courts in this State is five times more likely to receive a prison sentence and six times more likely to be refused bail than non-Aboriginals.^[14]

The National Prison Census of 1984 indicates that 14.3% of all persons in prison for ‘offensive behaviour’ offences are Aboriginal or Torres Strait Islander. Aborigines and Torres Strait Islanders are similarly disproportionately represented for other ‘good order’ offences (26.5% of all prisoners) and for justice procedure offences eg breach of bond (17.3%).^[15] Changes in the law aimed at remedying this situation — such as the decriminalisation of intoxication or reform of the law relating to street offences — have often not produced the desired result. Such changes do not necessarily lead to a reduction in the level of contact by Aborigines with the criminal justice system, and especially with the police.^[16]

396. Aboriginal Juvenile Offenders. The statistics for juvenile offenders present a similar picture. For example, in the Northern Territory in 1983-4, 400 of the 894 appearances (44.7%) by juvenile defendants in criminal cases were made by Aborigines; in Western Australia in the same year the figure was 1173 of 8266, (14.2%).^[17] As the Director of the Office of Crime Statistics in South Australia has pointed out, such figures:

consistently … show that young Aboriginal people suspected of offending are:

• more likely to be arrested than summonsed;

• more likely to be referred to courts rather than to aid panels (during the first half of 1982, 64% of young Aboriginal defendants went to court, compared to only 36% of other defendants — penalties imposed by aid panels generally are far less severe than courts);

• more likely to have been remanded in custody.^[18]

397. What do the Statistics Mean? Commenting on earlier but similar Aboriginal imprisonment rates the then Director of the Australian Institute of Criminology said:

These are dramatic rates of imprisonment by any standards and for any community. Just to quote them is to question their justification. You have to believe either that Aboriginals are the most criminal of minorities in the world or that there is something inherently wrong with a system which uses imprisonment so liberally.^[19]

The problems reflected by these statistics cannot be attributed to any one cause, whether this is actual offending rates, the problematic definition of offences in some cases, or discriminatory policing. The situation — or rather, the range of situations — which underlie the statistics is undoubtedly the product of a variety of factors. But understanding of these remains limited, and the need for careful assessment of the present position, as well as for appropriate action, is obvious. Where the situation described in these studies and reports results from discriminatory policing, steps should be taken to prevent such discrimination in future. To the extent that it results from insensitive application of the law, the law or its administration should be appropriately reformed. To the extent that it results from poverty, social and educational deprivation and poor standards of health (engendering attitudes of apathy, boredom or despair) these should be confronted and if possible remedied. To the extent that it results from alcohol or petrol sniffing, the provision of appropriate rehabilitation and support services should be encouraged. All this is well enough known and ought to be generally accepted. In many areas some steps have been or are being taken, by or in collaboration with Aboriginal agencies and organisations, in the directions suggested above. But the question remains: what is the relevance of these statistics for this Reference? To what extent are they the product of non-recognition of Aboriginal customary laws? Do they reflect problems experienced by all Aborigines, or only certain groups? Are the problems a product of conflict between the general law and Aboriginal customary laws, and if so, to what extent can they be resolved through their recognition?

398. Large Heterogeneous Communities. Many Aborigines, including many traditionally oriented Aborigines, now live in much larger groups than was usual in pre-contact times.^[20] Many of these groups comprise people from different language groups and localities, with consequent dislocation and disharmony. The survey of Queensland reserves conducted by Wilson:

found two distinct clusters of reserves. One cluster had a very high rate of violence and the other was relatively low, although the latter rate was high by white standards. Examples of communities where violence rates were high included Palm Island, Weipa South and Yarrabah, where the average rate of violence was 7.07 per 1000 people. Those in the low-violence group (with a violence rating of 2.31 per 1000) include Lockhart, Doomadgee and Aurukun. High violence reserves were marked by a number of characteristics: alcohol was legally available: they had only low to medium levels of traditional culture; they had relatively high populations: most importantly, they were reserves that had received displaced Aborigines from other areas. Palm Island was originally established as a penal settlement. Weipa South had taken in people forcibly removed by police from their tribal lands at Mapoon, as well as others from Aurukun and Edward River. Yarrabah has people from a number of tribes. Reserves with a lower rating had nearly the reverse pattern: they were communities in which alcohol was not legally available; where relatively high levels of traditional culture survived: they had low populations: they were generally isolated from white influence; they were not receivers of people forced from their traditional areas. These trends in violence and destruction on Aboriginal reserves point to explanations which are familiar to observers of other societies. Whenever there is a lack of community cohesion, considerable mobility from one area to another and tribal disharmony, crime and violence rates escalate.^[21]

It may be that a similar trend could be shown among ‘mixed’ Aboriginal communities in the Northern Territory, compared with relatively homogeneous communities on their own land.^[22] But even if this is the case, that does not mean that the problems can be resolved by the recognition, or restoration, of Aboriginal customary laws. Even in more traditionally oriented communities, local responses to crime or violence will not necessarily involve reliance upon customary laws: they may involve an appeal to the general Australian law to assist (eg through increased policing). That there has been a resurgence of Aboriginal customary laws in some places (or an end to its suppression) is true. In conjunction with other factors this may contribute to a reduction in crime and disorder in those communities. But there is no simple correlation between adherence to Aboriginal tradition in a traditionally oriented community, and lower rates of crime and disorder.

399. No Simple Relationship between Adherence to Aboriginal Customary Laws and Low Offending Rates. The absence of any such correlation is supported by analysis of the characteristics of recorded offences involving Aborigines in traditional areas. Again, no detailed statistical material is available for all or even most Aboriginal groups, but some indications can be given based on the limited studies so far carried out.

• Duckworth, Foley-Jones, Lowe and Mailer studied the characteristics of 96 Aboriginal prisoners at three prisons in North-Western Australia in 1980.^[23] 80% of those interviewed had been or expected to be ‘put through the law’ (ie initiated in full or part), and 71% admitted continued adherence to customary law. Most were therefore, traditionally oriented. The authors report the following characteristic of the offenders and their offences:

· 78% had been in prison before;

· 72% were serving short sentences (less than 6 months);^[24]

· 77% were arrested in towns (although only 40% were town residents);

· 85% knew they were committing an offence at the time;

· 74% were really drunk at the time (and a further 18% had been drinking);

· only 6% (6) said that their offence was also a violation of tribal law: of these, two had been or expected to be traditionally punished. Three were uncertain what would happen to them in that regard.^[25]

Few differences emerged from a comparison between traditionally oriented and the non-traditional group:

More non-traditional, than traditionally oriented prisoners report prison as easy and a higher percentage of traditionally oriented report that they miss the company of their relatives. In addition, fewer traditionally oriented people could volunteer a reason for having prisons. These differences apart, the two sub-populations did not differ greatly over other responses.^[26]

• Judith Worrall investigated the offences prosecuted in what was then the NorthWest Aboriginal Reserve (SA) in 1979-80.^[27] These were cases heard locally by a visiting Magistrate. They therefore did not include the more serious offences not within the jurisdiction of a court of summary jurisdiction (except in those cases where a lesser charge may have been laid as an alternative to proceedings in a higher court in Port Augusta or Adelaide).^[28] Fifty individual offenders were charged with 103 offences (excluding traffic offences). Of the 50 all were male, 20 were juveniles. The major offences were breaking and entering (28), unlawful use of a motor vehicle (26), wilful damage to property (22) and drunkenness (11). The offences were overwhelmingly directed at Council or Government staff members, or at property belonging to the Council or the Government. According to Worrall:

Only the [2] assaults might possibly have involved customary law. In the first assault case, the defendant, while drunk, threatened his wife with a rifle. When she raised the alarm, a senior member of the community came to her aid and beat the husband. Only the husband was charged and the magistrate was asked to take the beating into account when setting the penalty. In the other assault case, the defendant assaulted his brother-in-law, whom he saw striking his (the defendant’s) sister. In both cases, there is considerable doubt that tribal law was involved at all. At the most, it could simply be interpreted as people having some say in the administration of the law in their community. It can reasonably be said that customary law has little or no effect on the administering of European law in this particular tribal community. If tribal punishments for breaches of customary law occur, and there is fair evidence that they do, the administers of the punishment do not seem to be punished by European law.^[29]

The North-West Aboriginal Reserve — now Pitjantjatjara land under the Pitjantjatjara Land Rights Act 1981 (SA) — is an area where Aboriginal customary laws are strong. Worrall concludes that in practice:

[t]he European law predominantly protects property: that of the white people in the community and of the Aboriginal Community Council. It is also used to control the use and abuse of alcohol in the community and juvenile offences associated with petrol sniffing. There are few offences against the person prosecuted and I can only speculate that this reflects a tolerance of the Aboriginal people [dealing] with interpersonal trouble in their own way: conflict appears to be resolved by community intervention or the utilization of traditional law.^[30]

• Brady and Morice investigated Aboriginal juvenile offences at Yalata which came before the Children’s Court or a Children’s Aid Panel in 1979 and 1980.^[31] A study of juvenile offenders, even in a community which retained a degree of traditionality,^[32] would not be expected to disclose much or any traditional law influence, and this proved to be the case. After identifying the very high incidence of offences involving young males at Yalata (a majority of the young men living at Yalata appeared for at least one offence in the period under review), and demonstrating that these were overwhelmingly property offences against white residents, or Government or community property,^[33] the authors comment:

It may be that in some communities teenage boys do try to avoid initiation ceremonies, stealing cars or committing some other illegal acts in the process of leaving the area. But to link offending behaviour in general with a ‘breakdown of tribal ways’ is to confuse the issue. ‘Tribal ways’ contained no sanctions against the modern illegal behaviours engaged in by adolescents. The fact that modern Aboriginal adolescents commit illegal acts against European laws does not necessarily have any bearing on ‘tri bal ways’ at all. No offence which resulted in a court appearance during our research period at Yalata could be linked with ‘traditional’ matters. The involvement of adolescent boys in offending behaviour did not appear to influence decisions made regarding their ritual incorporation … The true dilemma of Aboriginal versus Australian law lies in the situation whereby an action which may conform to Aboriginal law comes to be adjudicated upon by Australian law as an illegitimate act. It is rare for such a situation to evolve with reference to Aboriginal adolescents. The illegal acts they performed (breaking and entering, illegal uses), had no associated traditional sanctions. Consequently, there was dependence on the Australian legal system when it came to dealing with teenage breaking and entering charges, or illegal uses.^[34]

• In September 1982 this Commission issued Research Paper 6A, a selection of 47 cases in which issues of customary law or community opinion were regarded as relevant in sentencing.^[35] Only four of these cases were not Supreme Court matters. The cases (all but one in the period 1974-1982) were selected for their relevance to issues of traditional punishment and community opinion in sentencing Aborigines, and are not representative of all cases involving traditionally oriented Aborigines. But they can be regarded as representative of the kinds of matters before Supreme Courts in which customary law issues may arise.^[36] For present purposes the following characteristics are relevant.

· Overwhelmingly the selected cases involving adults (all but one of whom were males^[37]) related to homicide or some form of physical assault (including rape). Only one case involving an adult (in both the Aboriginal and general law sense) did not involve violence.^[38] This confirms a frequent observation about the different kinds of offences of adult and juvenile Aborigines living in traditionally oriented communities.^[39]

· The influence of alcohol was very marked. In 34 cases the defendant was significantly affected by alcohol. Intoxication was cited as a partial defence in 11 of the 34 cases involving alcohol.

· In only three of the selected cases could it be said with some certainty that the defendant was justified in acting as he did under Aboriginal customary laws.^[40] In a considerable majority of the cases the defendant’s act was a violation both of his own community’s law and of the general law, and the issue was the interaction between them in sentencing.^[41] In a few cases the defendant’s acts were regarded as not serious by the local community, or were viewed sympathetically in the circumstances, and again the issue was the relevance of this factor in sentencing.^[42]

400. Some Implications. The implications of the material outlined in para 394-399, and the situation it portrays, will be discussed in more detail in Chapter 21 in the context of sentencing. Given the disproportionately high representation of Aboriginal people within the criminal justice system, the lack of critical criminological analysis of the statistics is both surprising and unsatisfactory. The paucity of well presented data on a wider scale makes it difficult to respond with any degree of confidence to the questions raised in para 397. However, for present purposes, some general conclusions may be drawn:

• Even when traditionally oriented Aborigines are involved in criminal charges, the case will frequently involve non-traditional elements (especially alcohol) or a non-traditional offence.

• It is commonly the case. even for traditionally oriented Aborigines, that the act the result of the charge cannot readily be identified as related to Aboriginal customary laws.

• The explanation for very high offence and imprisonment rates of Aborigines is not, necessarily in any direct way, the product of non-recognition of Aboriginal customary laws.

• It is unlikely that the problems reflected by those exorbitant rates will be solved by the recognition of Aboriginal customary laws within the substantive criminal law. Indeed, if the characteristics of traditionally oriented Aboriginal offenders do not differ markedly from the characteristics of other Aboriginal offenders, it may be that solutions will not be found directly through any form of recognition of Aboriginal customary laws. They are more likely to require changes in the general law and its administration, or improving the social, educational and economic conditions in which Aborigines live.

• Customary and cultural elements may however still be of relevance in criminal law cases (including both serious and minor offences^[43]). This aspect is returned to in para 402. These conclusions do not deny the possibility that the recognition of Aboriginal customary laws may assist indirectly in maintaining order in Aboriginal communities. But they do put into perspective the limited character of the Commission’s inquiry in the area of the substantive criminal law.